Columbia  SBnit^em'tp 

CoHegc  of  ^{jpgicianss  anb  burgeons; 
Hibrarp 


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WHARTON  AND  STILLE'S 


MEDICAL  JURISPRUDENCE. 


FOUETH   EDITION". 


YOL.  I. 


PHILADELPHIA: 
KAY  &  BROTHER,  17  AND  19  SOUTH  SIXTH  STREET. 

1882. 


Entered  according  to  Act  of  Congress,  in  the  year  1855,  by 
KAT    &    BROTHER, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1860,  by 
KAT   &   BROTHER, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1872,  by 

KAT   &   BROTHER, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1882,  by 

FRANCIS    WHARTON, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


COLLINS,     PEIXTER. 


A  TREATISE 


MEOTAL  UNSOUroMSS, 


EMBRACING    A 


GENERAL  VIEW  OF  PSYCHOLOGICAL  LAW. 


BY 

FRANCIS  WHARTON,  LL.D., 

AUTHOR  OF  TREATISES  ON  CRIMINAL  LAW,  ON  EVIDENCE,  AND  ON  THE  CONFLICT  OF  LAWS. 


PHILADELPHIA: 
KAY  &  BROTHER,  17  AND  19  SOUTH  SIXTH  STREET. 

1882. 


Entered  according  to  Act  of  Congress,  in  the  year  1855,  by 
KAY    &   BROTHER, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1860,  by 
KAY   &   BROTHER, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1872,  by 

KAY   &   BROTHER, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1882,  by 

FRANCIS   WHARTON, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


PEEFACE  TO  THE  FOURTH  EDITION. 


In  the  present  edition  the  text  of  former  editions  has 
been  rearranged  and  condensed ;  a  large  amount  of  new 
material  introduced ^  the  number  of  citations  having 
been  doubled;  and  the  chapters  on  the  jurisprudence  of 
insanity  rewritten.  In  the  task  of  preparation  I  have 
been  aided  by  my  nephew,  Thomas  I.  Wharton,  Esq., 
of  Philadelphia. 

F.  W. 

Philadelphia,  March  24,  1882. 


PREFACE  TO  THE  THIRD  EDITION. 


Since  the  publication,  in  1860,  of  the  second  edition  of  this 
work,  the  specialty  of  psychological  law  has  taken  a  shape  which 
has  made  necessary  the  preparation  of  a  treatise  Avhich  is  substan- 
tially new.  The  circumstances  which  have  led  to  this  change  may 
be  thus  stated. 

Until  the  close  of  the  last  century,  insanity  received  but  little 
attention  from  physicians,  and  still  less  from  psychologists.  "  Lu- 
natics," to  follow  the  barbarous  old  English  designation,  were  re- 
garded as  outcasts  mostly  incurable  ;  as  devoid  of  those  sensibilities 
which  call  for  tender  care  ;  as  presenting  little  more  claim  to  phi- 
lanthropic consideration  than  do  brutes.  Unless  birth  or  wealth 
gave  special  opportunities  for  their  custody  at  home,  they  were 
huddled,  in  England  and  France,  in  pens,  or  chained  in  cells,  where 
they  were  generally  subjected  to  treatment  the  most  brutal.  In 
New  England  they  were  often  let  out '  by  the  town  to  the  lowest 
bidder,  who  undertook  to  support  them  for  a  pittance  scarcely 
sufficient  to  buy  offals  for  their  food,  and  who  permitted  them,  when 
they  were  gentle,  to  roam  at  large,  or  chained  them,  when  violent, 
in  stables.  Asylums,  as  reformatory  and  hygienic  establishments, 
were  unknown.  Hence  arose  the  tendency  both  of  psychologists 
and  courts  to  narrow  the  definition  of  insanity  so  as  to  reduce  as 
far  as  possible  the  numbers  of  the  class  who  were  to  be  subjected  to 
so  wretched  a  doom. 

But  on  the  insanity  of  George  III.  a  new  era  came  in.  Insanity 
could  not  be  so  vulgar  a  thing  when  it  attacked  the  king.  It  could 
scarcely  be  regarded  by  loyal  Englishmen  as  a  merited  curse,  when 

vii 


PREFACE    TO    THE    THIRD    EDITION. 

it  visited  a  prince  of  whose  virtues  they  were  justly  proud,  and  of 
whose  obstinate  self-will  they  were  blindly  ignorant.     Philanthro- 
pists as  well  as  philosophers  poured  in  with  abundant  advice  as  to 
the  tenderest  treatment  to  be  applied  to  the  royal  suiFerer ;  and 
committees  of  the  house  of  commons  vied  with  medical  commissions 
in  speculating  on  the  characteristics  of  a  malady  which  had  become 
exalted  in  the   exaltation  of  the  victim  on  whom  it  had  pounced. 
Fortunately  for  the  interests  of  humanity,  almost  simultaneously 
took  place  in  Paris  the  investigations  of  Pinel.     This  remarkable 
man,  who  united  in  rare  excellence  great  administrative  power, 
untiring  patience  of  research,  and  singular  attractiveness  of  style, 
found  the  Bic^tre,  when  he  took  medical  charge  of  it  in  1791,  in  a 
condition  at  which  humanity  shuddered.     It  combined,  under  one 
general  superintendence,  the  functions  of  almshouse,  prison,  nursery, 
foundling's  home,  and  lunatic  asylum,  with  no  distinction  made  in 
the  treatment  of  crime  and  of  disease.     Such  patients  as  could  do 
so  without  disturbance  mingled  with  the  other  inmates  of  this  vast 
abode  of  wretchedness  and  of  guilt ;  but  those  who  were  in  any 
way  troublesome  were  chained  in  damp  and  putrid  cells,  under  the 
charge  of  convicts  whose  desperateness  seemed  to  constitute  their 
title  to  this  distinction.     Against  this  inhumanity  Pinel  protested 
with  such  untiring  and  dauntless  eloquence  that  he  succeeded  in 
effecting  a  thorough  reformation.     A  separate   asylum,  based  on 
wise  sanitary  regulations,  was  opened  for  the  insane,  and  subse- 
quently  the   Salp6tri^re,   a    distinct   establishment  for   deranged 
women,  was  organized  under  his  particular  care.     He  was  suc- 
ceeded at  the  Salp^triere  by  Esquirol,  who  had  been  his  assistant, 
and  by  whom  his  wise  hygienic  reforms  were  further  elaborated 
and  extended. 

Nor  did  the   efforts  of  these    eminent  physicians  stop  at  the 

amelioration  of  the  physical  and  mental  condition  of  the  insane. 

Madness  having  been  shown  to  be  capable  of  cure,  and  to  be  a 

condition  in  itself  implying  no  moral  stigma,  and  insane  asylums 

viii 


PREFACE    TO    THE    THIRD   EDITION. 

having  been  proved  to  be  the  places  where  the  insane  can  most 
readily  be  restored  to  health,  many  persons  came  to  be  regarded 
by  their  friends  and  by  a  rightful  public  feeling  as  insane,  who 
previously  would  have  been  treated  as  sane.  The  definition  of 
insanity,  in  the  philanthropic  mind  at  least,  was  so  enlarged  as  to 
include  all  persons  who,  while  not  being  clearly  maniacs,  were  yet 
subject  to  mental  or  moral  anomalies  which  a  wise  medical  treat- 
ment could  remove. 

But  this  was  not  the  only  circumstance  that  tended  to  an  expan- 
sion of  the  definition.  Another  influence,  still  more  marked,  had 
already  prepared  the  public  mind  to  treat  as  insanity  much  that 
was  really  only  folly  or  guilty  impulse.  Between  1760  and  1764, 
Rousseau  published  his  Contrat  Social  and  .Emile,  works  which, 
in  the  sentimental  humanitarianism  they  inculcated,  were  the  natural 
extreme  reaction  from  the  inhumanity  of  the  prior  absolutist  regime. 
Rousseau  flamed  with  a  romantic  admiration  not  merely  for  the 
liberty  to  do  right,  but  for  the  liberty  to  do  wrong.  Even  the 
grossest  natural  instincts  were  of  divine  origin,  and  should  be  nursed 
with  delicate  respect.  Crime  was  something  to  which  a  man  was 
impelled  by  his  nature  ;  else  why  should  he  indulge  in  crime  ? 
Heretofore  all  insanity  was  crime.  Now  all  crime  was  to  be  in- 
sanity. Sin  was  not  to  be  viewed  as  horrible  and  odious,  but  as 
something  abnormal,  indeed,  but  provocative  of  curious  regard  and 
sympathy.  And  criminals  were  an  interesting  class  of  lunatics, 
who  were  especially  consecrated  to  the  restorative  care  of  the 
state. 

Pinel,  like  most  other  French  philosophers  of  his  day,  was  not 
slow,  when  responding  to  this  reaction,  to  welcome  a  plan  which 
proposed  to  extirpate  crime  and  inaugurate  liberty,  by  placing 
crime  distinctively  under  humane  medical  care.  Undoubtedly 
there  was  much  in  his  special  experience  to  strengthen  him  in  this 
view.  He  had  seen  many  insane  persons  treated  as  criminals.  It 
was  natural  to  him  to  assume  the  converse,  and  to  hold  that  there 

IX 


PREFACE    TO    THE   THIRD    EDITION. 

are  many  criminals  who  are  to  be  treated  as  insane.     In  sustaining 
this  view  he  cautiously  though  distinctly  set  forth  the  proposition, 
hereafter  fully  discussed/  that  there  is'  a  distinct  form  of  mad- 
ness in  which  the  reason  remains  unimpaired.     It  is  true,  when 
he   came   to  illustrate  this  by  examples,  it  was  found  that  the 
"  reasoning   maniacs,"    whom    he    described,   were   more   or   less 
maniacs  even  in  their  reason.     But  nevertheless  the  proposition 
fitted  symmetrically  into  the  philosophy  of  the  French  revolution,  and 
was  accepted  by  the  apostles  of  that  revolution  wherever  they  taught. 
Fifty  years  afterwards,  in  times  greatly  changed,  another  influ- 
ence arose  to  give  fresh  impetus  to  the  same  peculiar  theory.     The 
French  revolution  was  over,  and  with  it  had  vanished  those  ideas 
of  sentimental  humanitarianism  which  had  lent  it  so  much  fascina- 
tion.    It  is  true  that  the   evaporating  process  was  not  without  a 
sensible  deposit  of  good.     Insanity,  for  instance,  was  no  longer 
associated  with  crime  ;  and  the  speculations  of  Pinel,  reproduced  in 
a  modified  shape  by  his  scholar,  Esquirol,  were,  when  accepted  by 
French  legislation,  interpreted  to  mean  nothing  more  than  that 
crime  is  often  a  consequence  of  insanity,  and,  when  so,  is  irrespon- 
sible.    In  1798,  however.  Gall  startled  the  scientific  world  by  his 
alleged  discovery  of  phrenology.      His  genius,  eminently  enter- 
prising and  constructive,  but  shut  out  by  the  then  state  of  Europe 
from   political   adventure,  betook   itself  to  adventure  in  science. 
Arrested,  as  he  tells  us,  by  the  fact  that  those  of  his  school  com- 
panions who  had  good  verbal  memories  had  bulging  eyes,  he  grad- 
ually developed  the  theory  that  each  function  and  propensity  had 
a  separate  local  habitation  in  the  brain  ;  and  that  the  power  of  the 
function  or  propensity  varied  with  the  size  of  its  cerebral  apart- 
ment, as  measured  on  the  outside.    As,  however,  each  function  and 
each  propensity  dwelt  alone  in  its  particular  cell,  each  was  capable 
of  independent  action,  and,  of  course,  as  each  could  be  independ- 
ently strong  or  weak,  each  could  be  privately  insane.     This  sever- 

1  Infra,  §  531. 


PREFACE    TO    THE    THIRD    EDITION. 

ance  of  functions  and  propensities  was  the  distinguishing  feature  of 
Gall's  system  ;  and,  to  establish  it  psychologically,  he  devoted  the 
energies  of  a  mind  which,  while  disdaining  logical  restraint,  and 
rash  in  leaping  at  results,  was  peculiarly  quick,  curious,  and  spe- 
cious. A  peripatetic  from  necessity,  for  the  German  reactionary 
governments,  doubtful  of  the  uses  to  which  his  philosophy  might 
be  put,  forced  him  into  a  series  of  exiles,  he  collected,  wherever  he 
went,  from  newspapers,  from  sympathetic  disciples,  from  every 
quarter,  in  fact,  except  the  official  reports  of  experts  and  of  courts, 
every  anecdote  by  which  his  theory  could  be  helped.  Such  was 
the  piquant  plausibility  of  his  publications  that  they  not  only 
attracted  interest,  but  enlisted  enthusiasm.  Nothing,  indeed,  could 
be  more  racy  than  his  details.  A  distinguished  prince,  remarkable 
for  his  sagacity  and  cool  sense,  was  possessed,  it  was  declared,  by 
an  irresistible  propensity  to  steal.  A  young  girl,  of  singular 
amiability  and  excellent  reasoning  powers,  was  in  the  habit  of  set- 
ting fire  to  houses.  A  philanthropist,  blandly  sane  in  all  other 
respects,  met  with  some  injury  to  the  cell  that  restrained  the  func- 
tion of  destructiveness,  and  forthwith  betook  him  to  killing  his 
neighbors.  No  doubt  there  was  a  basis  of  reality  in  most  of  Gall's 
cases.  The  difficulty  was  that  he  did  not  sufficiently  investigate 
the  facts.  For  all  he  knew,  and  for  all  he  inquired,  the  prince, 
and  the  girl,  and  the  philanthropist  might  have  been  the  descend- 
ants of  insane  parents ;  might  have  been  epileptics ;  might  have 
betrayed  in  their  families  unmistakable  symptoms  of  mental  derange- 
ment ;  might  subsequently  have  died  in  a  madhouse.  Nor  were 
his  cases  cited  in  such  a  way  as  to  enable  subsequent  investigators 
to  inquire  into  their  accuracy.  No  one  could  tell  whence  most  of 
them  came.  Yet  so  engaging  was  the  style  in  which  they  were 
narrated,  and  so  great  was  the  confidence  felt  in  Gall  as  a  narrator, 
that  they  were  readily  accepted  by  those  whose  theories  they  sub- 
served. The  psychological  conclusion  was  inevitable.  If  criminal 
instincts  have  separate  apartments  in  the  brain,  then  those  criminal 

xi 


PREFACE    TO   THE    THIRD    EDITION. 

instincts  can  be  separately  insane.  Hence,  the  doctrine  of  mono- 
mania^ sustained  at  once  by  Gall's  facts  and  by  bis  hypothesis, 
began,  under  the  impulse  thus  imparted,  once  more  to  challenge 
judicial  assent. 

On  our  distinctive  jurisprudence,  the  causes  just  mentioned 
would  have  had  little  influence  had  it  not  been  for  the  indirect 
bearings  of  another  condition.  Nothing  could  have  been  more 
barbarous  than  the  old  English  adjustment  of  penalty  to  crime. 
A  man  who  stole  a  fowl  was  capitally  punished  ;  and,  even  after  a 
century  of  legal  reform,  the  laAv  in  England  still  is  that  a  man  who 
kills  another  when  designing  to  hurt,  but  not  to  kill,  is  amenable  to 
as  high  a  sentence  as  he  who  deliberately  assassinates.  But 
humane  observers  revolted  from  this  subjecting  crimes  so  entirely 
distinct  to  the  same  penalty,  and  they  cast  about  for  some  method 
of  relief.  In  the  United  States  a  remedy  was  seized  which  was  in 
a  large  measure  efficacious.  Murder  was  divided  into  two  degrees, 
and  capital  punishment  was  reserved  exclusively  for  cases  in  which 
there  was  proved  a  premeditated  intention  to  take  life.  On  this 
has  been  not  unfrequently  grafted  the  humane  construction  that 
where  from  mental  or  nervous  excitement  the  defendant  is  incapable 
of  forming  a  specific  intent,  then  the  capital  offence  is  not  proven.^ 
But  in  England,  these  mitigating  qualifications  were  not  accepted  ; 
and  though  in  the  United  States  the  division  of  murder  into  two 
degrees  was  at  an  early  period  established  almost  universally,  the 
courts  were  at  first  slow  to  recognize  the  fact  that  a  mind  disturbed 
by  nervous  excitement  and  blurred  by  insane  predispositions  may 
be  incapable  of  intellectual  premeditation,  while  at  the  same  time 
capable  and  responsible  for  passionate  crime.  Hence,  it  has  been 
that  the  jury  has  been  too  often  narrowed  to  a  choice  between  con- 
viction of  a  capital  offence  and  acquittal ;  and  hence,  to  justify  an 
acquittal,  insanity  has  sometimes  been  used  as  a  pretext,  when 
insanity  in  the  correct  sense  of  the  term  did  not  exist. 

'  See  infra,  §  200. 

xii 


PREFACE    TO    THE    THIRD    EDITION. 

This  unscientific  extension  of  insanity  received  a  quasi  scientific 
sanction  under  the  following  circumstances.  By  the  Anglo-Ameri- 
can practice,  a  party  is  entitled  to  call  on  trial  any  expert  he  may 
select ;  and  he  is  not  likely  to  select  any  whose  views  will  not  pro- 
mote his  cause.  It  so  happens  that  among  the  present  large  body 
of  experts  there  is  little  trouble  in  discovering  one  or  more  by  whom 
is  maintained  the  particular  psychological  theory  of  which  the  party 
on  trial  stands  in  need.  It  is  an  old  truth  that  there  is  nothing  so 
absurd  but  that  some  philosopher  may  be  found  by  Avhom  it  is 
affirmed.  "  Nihil  tarn  absurde  dici  potest  quod  non  dicatur  ab 
aliquo  philosophorum."^  To  sustain  a  particular  defence,  for 
instance,  it  is  necessary  to  prove  that  the  "  morals"  may  be  insane 
while  the  mind  is  sane.  The  defendant's  counsel  forthwith  proceed 
to  search  among  the  multitudes  who  have  written  on  insanity,  or 
have  been  in  any  way  conversant  with  the  insane,  for  a  philosopher 
by  whom  this  unique  hypothesis  is  held.  When  the  case  is  tried, 
this  philosopher  is  produced  and  swears  promptly  and  positively 
to  his  belief.  On  the  strict  principles  of  law,  he  cannot  be  cross- 
examined  as  to  the  opinions  of  others,  for  this  would  be  hearsay. 
So  far,  therefore,  as  the  particular  case  is  concerned,  he  stands 
before  the  jury  as  if  he  was  the  collected  sense  of  the  psychological 
experts  of  the  whole  world.  It  may  be  that  the  prosecution  may 
be  able  to  cancel  his  testimony  by  the  production  of  a  preponderat- 
ing weight  of  experts  on  the  other  side.  But  to  do  so  requires 
energy,  skill,  and  means  ;  and  too  often  has  the  duty  been  neg- 
lected, and  the  case  left  to  rest,  in  criminal  trials,  on  the  testimony 
of  the  exceptional  experts  selected  by  the  defence.  Hence  it  is 
that  juries,  if  not  courts,  have  occasionally  succumbed  to  such 
testimony  in  respectful  amazement,  feeling,  indeed,  that  it  is  wrong, 
but  not  seeing  how  it  could  be  disregarded. 

As  influences  disturbing  the  juridical  conception  of  insanity — to 
recapitulate  those  which  we  have  just  been  enumerating  in  detail — 

1  Cicero,  de  Diviiiatione,  II.  58. 

xiii 


PREFACE    TO    THE    THIRD   EDITION. 

we  may,  therefore,  mention  (1)  the  romanticism  of  the  French 
psychological  followers  of  Rousseau,  afterwards  aided  by  phre- 
nology, which  refined  crime  into  insanity ;  (2)  reaction  from  the 
old  English  barbarism  which  punished  insanity  as  if  it  were  crime  ; 
and  (3)  the  hesitation  felt  by  the  courts  in  grappling  with  the 
philosophy  of  a  question  which  had  been  claimed  to  be  purely 
medical.  Under  these  circumstances  arose  that  confusion  of  law 
which  was  noticed  in  the  prior  editions  of  this  treatise. 

Since  1860,  when  the  second  edition  was  issued,  a  great  change 
has  taken  place.  Before  that  period,  we  may  say  generally,  there 
had  been  no  positive  and  final  repudiation  by  psychological  science 
of  the  theory  of  criminal  monomanias.  Since  then  medical  as  well 
as  psychological  science  has  rallied,  and  from  all  quarters  there 
has  risen,  as  will  be  hereafter  shown  more  fully,  almost  an  unbroken 
denunciation  of  a  scheme  of  psychological  romanticism  which  sober- 
minded  men  have  learned  to  feel  is  as  repugnant  to  science  as  it  is 
hostile  to  society.^  And  this  advance  of  science,  towards  a  common 
reconciliatory  stand-point,  is  now  met  by  a  corresponding  advance 
of  law.  It  has  been  just  stated  that  one  of  the  causes  of  early 
juridical  confusion  on  this  topic  was  the  revulsion  from  the  exces- 
sive punishments  assigned  by  the  old  law  to  offences  of  even  lighter 
grade.  Civilization  was  shocked  at  seeing  a  man,  who,  from  ner- 
vous or  mental  or  physical  disorder,  was  incapable  of  cool  premedi- 
tation or  exact  intent,  hurried  to  the  gallows  for  what  might  be  a 
comparatively  venial  crime  ;  and  it  was  to  the  desire  to  save  such 
that  the  toleration  of  the  idea  of  irresponsibility  in  such  cases  is  in 
a  large  measure  traceable.  But  it  was  soon  found  that  this  enlarge- 
ment of  irresponsibility  worked  badly.  It  exposed  many  persons, 
virtually  sane,  to  the  pains  and  penalties  of  insanity.  It  enfran- 
chised a  dangerous  class  of  outlaws,  too  insane  to  be  punished  for 
crime,  and  yet  too  sane  to  be  restrained.  It  involved,  on  the  part 
of  the  state,  the  abdication  of  one  of  its  chiefest  functions — the 

1  See  infra,  §§  552-643. 

xiv 


PREFACE    TO    THE    THIRD    EDITION". 

building  up  of  a  right  moral  sense  in  those  of  its  subjects  in  whom 
such  moral  sense  is  deficient. 

But  is  so  violent  a  remedy  necessary  ?  Is  there  no  alternative 
between  an  unjust  conviction  of  a  man  of  an  offence  to  whose  grade 
of  guilt  he  does  not  quite  reach,  and  his  equally  unjust  acquittal  in 
the  face  of  evidence  showing  his  guilt  of  an  intermediate  grade  ? 
It  has  already  been  seen  that  in  the  United  States,  at  an  early  day, 
a  statutory  approach  was  made  to  this  result  by  the  beneficent 
enactments  dividing  murder  into  two  degrees.  But  this  by  itself  is 
not  enough.  A  court  may  say  to  a  jury,  "  Here  is  evidence  of 
premeditation  ;  you  must  here  find  either  murder  in  the  first  degree, 
or  acquit."  Eminent  jurists,  in  order  to  meet  this  difficulty,  have 
authoritatively  advanced  positions  which  have  just  been  incidentally 
noticed,  and  will  now  be  stated  more  fully. 

The  idea  of  diminished  responsibility,  in  cases  of  abnormal  ex- 
citement, is  already  familiar  to  the  law.  Homicide  in  hot  blood  is 
not  murder  but  manslaughter  ;  yet,  what  is  rage  but  a  short  frenzy, 
and  how  difficult  is  it  to  distinguish  such  frenzy  from  the  mania 
transitoria  of  the  alienists  ?  A  drunken  man  engages  in  a  brawl 
and  shoots  an  innocent  stranger ;  and  here,  as  his  mind  was  so 
stupefied  by  drink  that  he  was  incapable  of  a  specific  intent  to  take 
life,  the  offence  is  reduced  to  murder  in  the  second  degree.  Or  he 
receives  and  passes  a  counterfeit  note  when  in  the  same  condition, 
and  here  his  drunkenness  is  admissible  to  show  that  he  did  not 
know  the  note  was  counterfeit.  Or  a  series  of  men,  swept  away 
by  religious  or  political  excitement,  fall  into  such  a  highly  charged 
and  abnormal  state  of  mind  that  they  are  incapable  of  accurate 
perception,  and  here,  then,  homicide  committed  when  in  such  a  state 
is  held  to  be  reduced  to  murder  in  the  second  degree.^ 

How  are  these  last  states  distinguishable  from  other  well-known 
exciting  influences  ?     What  is  there  that  mitigates  guilt  in  cases 

'  See  infra,  §  181. 

XV 


PREFACE    TO    THE    THIRD   EDITION. 

where  the  patient  is  advanced  one  degree  in  the  insane  scale,  but 
will  not  mitigate  it  when  he  is  advanced  two  degrees  ? 

By  the  Austrian  and  Bavarian  codes  this  question  has  been 
recently  answered  by  the  recognition  of  degrees  in  penal  responsi- 
bility. Diminished  responsibility  (verminderte  Zurechnungsfahig- 
keit)  is  distinctively  and  authoritatively  defined  as  a  condition  in 
which  the  mind  is  incapable  of  calm  and  exact  premeditation  or 
conception,  and  to  this  condition  a  lesser  grade  of  punishment  is 
assigned.  And  the  same  principle  is  adopted  juridically  by  the 
North  German  courts.  In  England  there  is  no  statutory  adoption, 
so  far  as  concerns  insanity,  of  such  diminished  responsibility,  nor 
have  the  courts  as  yet  proceeded  so  far  as  to  look  upon  nervous  or 
mental  disease  as  lowering  the  grade  of  guilt,  emphatic  as  they  are 
in  recognizing  the  entire  suspension  of  responsibility  when  insanity 
destroys  the  capacity  of  distinguishing  between  right  and  wrong. 
But  the  reform  which  the  courts,  in  their  distinctively  judicial 
capacity,  have  felt  unable  to  effect,  has  been  brought  about  by  the 
joint  action  of  judiciary  and  executive.  Thus  in  two  remarkable 
cases  of  homicide,  those  of  Watson  and  Edmunds,  hereafter  fully 
noticed,^  the  defence  being  insanity,  but  the  proof  amounting 
merely  to  insane  predisposition,  or  at  the  highest  to  a  light  and 
incipient  stage  of  insanity,  while  the  jury  were  directed  to  convict, 
yet,  after  conviction  of  the  capital  crime,  on  application  to  the 
crown,  in  which  the  judges  joined,  capital  punishment  was  com- 
muted to  imprisonment  for  life. 

In  the  United  States,  in  construing  the  statutes  already  noticed 
as  establishing  degrees  in  homicide,  the  courts^  have  uniformly 
held,  as  has  been  already  noticed,  that,  when  through  drunkenness 
the  defendant  was  incapable  of  premeditation  or  of  specific  intent, 
then  only  the  second  degree  of  murder  is  reached.  The  same 
relaxation  has  been  applied,  not  only  in  the  United  States,  but  in 
England,  to  cases  of  larceny  and  other  fraudulent  crimes  Avhen  the 

>  See  infra,  §§  166-173.  2  See  infra,  §§  214-227. 

xvi 


PREFACE    TO    THE    THIRD    EDITION. 

party's  mental  condition  was  such  through  drunkenness  that  he  was 
incapable  of  guilty  knowledge  or  intent.  And  in  Pennsylvania,  in 
a  series  of  cases  of  riotous  homicide  committed  by  parties  in  a  high 
state  of  political  and  religious  excitement,  the  courts  humanely  and 
wisely  accepted  the  principle  already  stated,  that  there  may  be  a 
fury  and  distraction  of  mind  in  which  the  capacity  to  comprehend, 
to  compare,  to  weigh,  and  to  premeditate  may  be  temporarily  so 
far  depressed  or  disturbed  as  to  bring  the  offence  within  the  defini- 
tion of  murder  in  the  second,  as  distinguished  from  that  of  murder 
in  the  first  degree."^ 

From  the  scope  of  the  reasoning  which  has  led  to  such  results,  it 
is  impossible  to  withdraw  cases  of  mental  excitement  and  disturb- 
ance, which,  though  not  amounting  to  such  mature  insanity  as  to 
utterly  suspend  responsibility,  yet  prevent  the  patient  from  forming 
calm,  premeditated,  and  specific  criminal  designs.  Slow  as  have 
the  courts  been  in  reaching  this  conclusion,  we  may  now  regard  it 
as  gradually  winning  judicial  acceptance  ;^  and,  if  so,  we  may  view 
the  law  as  having  received  an  expansion  philosophically  consistent 
with  its  own  principles,  and  bringing  it  in  full  accord  with  the 
mature  and  humane  renditions  of  science.  Heretofore  "  moral 
insanity"  and  "insane  monomania"  have  owed  the  little  practical 
favor  they  have  wrung  from  courts  and  juries  to  the  fact  that  there 
were  cases  in  which  their  recognition  seemed  to  be  the  only  way  of 
escaping  a  verdict  which  would  involve  the  penalty  of  death.  The 
consequence  was  that  the  public  was  outraged,  sometimes  by  the 
acquittal,  on  the  ground  of  insanity,  of  men  who  in  no  other  rela- 
tion would  be  viewed  as  insane,  and  sometimes  by  the  conviction 
and  execution  of  men  who,  though  not  fully  insane,  would  in  no 
relation  be  regarded  as  fully  and  perfectly  responsible.  The  mod- 
ification of  the  law  now  introduced  avoids  both  these  extremes.  It 
says,  on  the  one  hand,  that  men  not  fully  and  perfectly  insane  are 
not  to  be  acquitted  of  crime.     It  says,  on  the  other  hand,  that  they 

»  See  infra,  §§  181,  200.  '  "  See  infra,  §  200. 

VOL.  I. — B  Xvil 


PREFACE    TO    THE    THIRD   EDITION. 

are  not  to  be  convicted  of  those  higher  grades  of  calm  and  specific 
guilt  of  which  they  were  not  capable.  It  judges  them  according 
to  their  lights,  and  assigns  to  them  that  well-known  grade  of  modi- 
fied guilt  which  belongs  to  those  who  do  wrong,  wilfully,  indeed, 
and  intentionally,  but  whose  illegal  acts  are  the  consequents  of  such 
passion  as  destroys  in  them  the  capacity  of  accurate  guilty  knowl- 
edge or  complete  guilty  design. 

Such  is  the  shape  into  which  the  law  of  insanity  is  now  gradually 
settling.  That  the  change  is  one  of  natural  and  logical  develop- 
ment will  at  once  be  seen ;  but  with  regard  to  it,  so  far  as  concerns 
the  question  of  time,  and  therefore,  so  far  as  concerns  the  present 
edition  of  this  work,  two  circumstances  are  to  be  particularly 
noticed.  The  first  is  that  the  development  here  spoken  of  has,  on 
the  law  side,  evidenced  itself  distinctively  in  the  last  ten  years. 
The  second  is  that,  on  the  psychological  and  medical  side,  it  has 
only  been  within  the  last  ten  or  fifteen  years  that  the  opinions  of 
experts  and  of  scientists  have  presented  themselves  in  such  a  body 
as  to  enable  the  full  voice  of  science  and  experience  in  this  relation 
to  be  heard.  The  results  on  both  sides  of  the  inquiry  are  exhib- 
ited in  the  following  pages.  What  has  been  just  said  is  mainly 
designed  for  the  purpose  of  explaining  why  the  text  of  the  former 
editions  has  been  in  a  large  measure  thrown  aside,  and  why,  in  its 
place,  is  presented  what  is  substantially  a  new  treatise.^ 

The  author  takes  this  method  of  expressing  his  acknowledgments 
to  T.  C.  CooGAX,  Esq.,  and  Nathan  Franks,  Esq.,  for  aid  rendered 
in  examination  of  authorities. 

'  On  the  special  topic  of  this  preface  may  be  consulted  Dr.  Hammond  on 
"  Reasoning  Mania,"  Jour.  Nerv.  and  Ment.  Diseases,  Jan.  1882.  Attention  is 
also  directed  to  the  valuable  reports  of  Mr.  Richard  Vans  on  Prison  Discipline. 

xviii 


TABLE  OF  COXTENTS. 


BOOK  I. 
MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

CHAPTER  I. 

CONTRACTS,  §§  1-18. 

I.  Lunacy,  §  1. 
II.  Intoxication,  §  16. 
III.  Marriage  contracts,  §  17. 

CHAPTER  II. 

WILLS,  §§  19-98. 

I.  Capacity",  §  19. 
II.  Delusions,  §  34. 

III.  Lucid  intervals,  §  61. 

IV.  Intoxication,  §  Qo. 

V.  Undue  influence  and  fraud,  §  76. 
VI.  Presumptions,  §  81. 

CHAPTER  IIL 

COMMISSIONS  OF  LUNACY,  §§  99-107. 

CHAPTER  IV. 

INSANITY  AS  A  DEFENCE  TO  CHARGE  OF  CRIME,   §§  108-201. 

L  General  rule,  §  108. 
11.  Special  exceptions,  §  116. 

xix 


CONTENTS. 

CHAPTER  V. 

INTOXICATION  AS  A  DEFENCE  TO  CHARGE  OF  CRIME,  §§  202-217. 

CHAPTER  VI. 

INSANITY  AS  RELATED  TO  LIFE  INSURANCE,  §§  229-241. 

CHAPTER  VII. 

INSANE  PERSONS  AS  WITNESSES,  §§  242-245. 

CHAPTER  VIII. 

EVIDENCE,  §§  246-279. 

I.  Mode  of  proof,  §  246. 
II.  Witnesses,  §  257. 
III.  Books,  §  279. 


BOOK  II. 

MENTAL  UNSOUNDNESS  CONSIDERED  PSYCHO- 
LOGICALLY. 

CHAPTER  I. 

GENERAL  THEORIES,  §§  305-337. 

I.  Preliminary  observations,  §  305. 
II.  Psychical  theory,  §  319. 

III.  Somatic  theory,  §  320. 

IV.  Intermediate  theory,  §  329. 

CHAPTER  II. 

HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED,  §§  338-411. 

I.  By  whom,  §  338. 
II.  At  what  time  examinations  should  be  made,  §  341. 
III.  By  what  tests,  §  345. 

XX 


CONTENTS. 

CHAPTER  III. 

FROM  WHAT  MENTAL  UNSOUNDNESS  IS  TO  BE  DISTINGUISHED, 

§§  412-460. 

I.  Emotions,  §  412. 
II.  Simulated  insanity,  §  443. 

CHAPTER  IV. 

MENTAL  UNSOUNDNESS  AS  CONNECTED  WITH  PHYSICAL  DISORDERS, 

§§  461-530. 

I.  As  connected  with  derangement  of  the  senses  and  disease,  §  461. 
II.  As  connected  with  sleep,  §  482. 
III.  As  affecting  the  temperament,  §  502. 

CHAPTER  V. 

MENTAL  UNSOUNDNESS  AS  AFFECTING  THE  MORAL  SENSE,' §§  531-681. 

I.  General  "  moral  insanity,"  §  531. 
II.  Special  "moral  monomanias,"  §  567. 
III.  Prominent  forms  of  supposed  monomania,  §  578. 

CHAPTER  VI. 

IDIOCY,  IMBECILITY,  AND  DEMENTIA,  §§  682-701. 

I.  Idiocy,  §  682. 
II.  Imbecility,  §  692. 
III.  Dementia,  §  698. 

CHAPTER  VII. 

DELIRIUM,  §§  702-722. 

I.  General  delirium,  §  702. 
II.  Partial  delirium,  §  706. 

CHAPTER    VIII. 

DELUSIONS  AND  HALLUCINATIONS,   §§  723-743. 

CHAPTER  IX. 

LUCID  INTERVALS,  §§  744-752. 

xxi 


CONTENTS. 

CHAPTER  X. 

TREATMENT  OF  INSANE  CRIMINALS,  §§  753-770. 


I.  Eetribution,  §  754. 
II.  Prevention,  §  763. 

III.  Example,  §  765. 

IV.  Reform,  §  766. 


CHAPTER  XI. 

PSYCHICAL  INDICATIONS,  §§  771-833. 


I.  Prior  to  crime,  §  773. 
II.  At  crime,  §  781. 

III.  After  crime,  §  788. 

IV.  General  conclusions,  §  830. 


xxu 


TABLE  OF  CASES. 


[the  numbers  refer  to  sections.] 


A. 


B. 


Baker's  case  578 

Baker  v.  Baker  13,  18 

V   Lewis  77 

Baldwin  v.  Dunton  1 

V.  Parker  79 

V.  State  257 

Ball  V.  Manning  1 

Bank  of  Oil  City  v.  Ins.  Co.  238 

Bank  v.  McCoy  7,  16 

V.  Moore  1,  6  « 

Banker  v.  Banker  17 

Banks  v.  Goodfellow       3,  23,  46,  48,  88 

Bannatyne  v.  Bannatyne  21,  68,  64,  83, 

255 
Barker's  case  101 

Barker,  in  re  101 

Barnes  v.  Barnes  24,  77,  78,  81 


Achey  v.  Stephens 

3,  61, 

250 

Adams  v.  Kerr 

242 

Addington  v.  Wilson 

36 

Adkins  v.  Ins.  Co. 

239 

Allen  V.  Berryhill 

8,  14 

,  34 

Allis  V.  Billings 

9 

Allman  v.  Pigg 

77 

,  78 

Am.  Seaman's  Friend  Soc 

V. 

Sopper 

39 

Ames'  Will 

90 

Anderson  v.  State 

174 

Andress  v.  Weller   25,  28 

65 

,69,77 

,87 

Andrews'  case    162,  269, 

375 

,  388, 

116, 

707, 

712 

Angel  Will  case 

35 

Arnhout,  in  re 

101, 

107 

Arnold  v.  Richmond  Iron  Works 

<) 

Ashcraft  v    De  Armand 

89 

Atkinson  v.  Medford 

17  ! 

Atty.  Gen.  v.  Parnther 

2 

Aurentz  v.  Anderson 

2 

,  61  1 

Austen  v.  Graham 

29  : 

Ayrey  v.  Hill                  12, 

61, 

62,  69 

,70i 

Barnsley,  ex  parte 
Barr's  case 
Barret  v.  Buxton 
Barron's  case 
Bates  V.  Bates 
Baxter  v.  Abbott 

V.  Earl  of  Portsmouth 
Beals  V.  See 
Beaubien  v.  Cicotte 
Beaumont's  case 
Beavan  v.  McDonnell 
Behrens  v.  iMcKinsie 
Belcher  v.  Belcher 
Beller  v.  .Jones 
Bellingham's  case 
Bennett  v.  State 
Benoist  v.  Murria 
Bernett  v.  Taylor 
Beverly's  case 
Bicknell  v.  Bicknell 
Bigelow  V.  The  Ins.  Co 
Bird  V.  Bird 
Birdsong  v.  Birdsong 
Bishop  V.  Spining 
Bitner  v.  Bitner 
Black  V.  Ellis 
Black's  Estate 
Blackburn  v.  State 
Blackford  v.  Christian 
Blakeley  v.  Blakeley 
Blakeley's  Will 
Blanchard  v.  Nestle 
Blandy's  case 
Bleecker  v.  Lynch 
Bliss  V.  The  R.  R. 
Boardman  v   Woodman 
Bonard's  Will 
Booth  V.  Kitchen 
Borradaile  v.  Hunter 
Boswell  V.  Com. 
Boughton  V.  Knight 


101 
443 

16 

828 

16,  77 

375,  388 

1 

6,  8 

25,  257 

1,  101 


8 

16  6 

8 

679 

205 

30,  35 

242 

4,  12 

77 

239 

87 

7,  16  6 

259 

7 

24,  69 

100 

160 

76 

2 

7,  25,  29,  30 

23,  77 

779,  780 


25, 


Bovard  v.  State 
Bowler's  case 
Boyce  v.  Smith 


16  a 

37,  60,  61 

35,  59 

78,  81 

230 

214 

25,  26,  30,  34,  41, 

46,  242 

145 

117 

3 


XXIU 


TABLE   OF   CASES. 


Boyd  V.  Boyd 

V.  Eby 
Boylan  v.  Meeker 
Boyse  v.  Rossborough 
Bradford  v.  Abend 
Bradley  v.  State 
Breasted  v.  The  Farmers' 

Trust  Co. 
Breed  v.  Pratt 
Brick  V.  Brick  8,  29,  7 

Bricker  v.  Lightner 
Brill  V.  Flagler 
Broadwater  v.  Darne 
Brogden  v.  Brown 
Brooks  V.  Barrett 
Brown  v.  Com. 

V.  Joddrell 

V.  Riggin 

V.  Torrey 

V.  Ward  25, 

Browne  v.  Molliston 
Browning  v.  Reane 
Brydges  v.  King 
Buckminster  v.  Perry 
Bundy  v.  McKnight 
Burch  V.  Burch 
Burdett  v.  Thompson 
Burger  v.  Hill 
Burk's  Will 
Burke  v.  Allen 
Burroughs  v.  Ricbman 
Burrow's  case 
Burrows  v.  Burrows 
Butler  V.  Ins.  Co. 


82 

25,  34,  62 
85 

26,  77,  80 
18 

375,  377 
Loan  and 

232,  234 

6  a,  30,  78,  82 

77,  78,  80,  81 

258 

259 

16 

62 

241 

160 

4 

2,  24,  61 

25 

29,  30,  35,  59 

78,  87 

17 

77 

260 

25,  82 

795 

26 

23 

78 

5,  6  a 

17 

117,  209 

241 

257 


Cadwallader  v.  West 

1, 

77,  81,  82 

Caleb  V.  State 

259 

Campbell  v.  Hooper 

1 

V.  Ketchnm 

166 

V.  Spencer 

16a 

V.  State 

242 

Canada's  Appeal 

81 

Canfield  v.  Fairbank 

7 

Carpenter  v.  Calvert     24, 

26, 

29,  33,  81 

V.  Carpenter 

2,  61,  241 

Carr  v.  Holliday 

8 

Carroll's  Will 

.  77 

Cartwright  v.  Cartwright 

250 

Castner  v.  Sliker 

257,  260 

Caulkins  v.  Fry 

6«,  16 

Cavender  v.  Waddington 

16 

Chambers  v.  Queen's  Proctor 

63,  241 

Chandler  v.  Barrett 

62 

V.  Ferris 

77,  78 

Chapman  v.  Greaves 

•242 

V.  Ins.  Co. 

239 

Chase  v.  Lincoln 

260 

Chew  V.  Bank 

9 

Children's  Aid  Soc.  v.  Loveridge  78,  90 
Choice  V.  State  90,  174,  259,  643 

Christmas  v.  Mitchell  95 

Clapp  V.  FuUerton  40,  258 

Clark  V.  Stansbury  79,  81,  82 

V.  State  257 

Clarke  v.  Fisher    25,  80,  61,  62,  63,  81, 

83 
V.  Sawyer 
Clary  v.  Clary 
Clearwater  v.  Kimler 
Clement  v.  Mattison 
Clift  V.  Schwabe 


Clifton  V.  Murray 
Coffey  V.  Ins.  Co. 
Coit  V.  Patchen 
Colah,  in  re 
Cole  V.  Cole 

V.  Bobbins 
Cole's  Will 
Coleman  v.  Com. 
V.  Frazer 
V.  Robertson 
Colhoun  V.  Jones 
Collins,  in  re 

V.  Townley 
Combe's  case 


Com. 


23,  77 

257 

1 

17 

236 

96 

241 

35,  40,  82 

100 

17 

5 

35,  40,  41 

242 

1 

34,  84 

82 

104 

27,  89,  90 

77 

117 

204 

214 

214 

144,  159,  198 
117,  174 

214 
104  a 

145,  157,  117 
242 
259 

V.  Rogers  117,  126,  134,  156,  174, 
259,  375 
104 
829 
210 
257 
258 
25,  26,  78,  80 
25,  26,  77 
81 
16  a,  16c 
233,  237 
25 
205 
16a 
35,  40 
83 


V.  Farkin 
V.  Green 
V.  Haggerty 
V.  Hart 
V.  Haskell 
V.  Heath 
V.  Jones 
v.,  Kirkbride 
V.  Mosler 
V.  Reynolds 
V.  Rich 


V.  Schneider 

V.  Scott 

V.  Smith 

V.  Sturtivant 

V.  Wilson 
Comstock  V.  Hadlyme 
Converse  v.  Converse 
Convey's  Will 
Cooke  V.  Clayworth 
Cooper  V.  Ins.  Co. 
Cordrey  v.  Cordrey 
Cornwell  v.  State 
Cory  V.  Cory 
Cotton  V.  Ulmer 
Couch  V.  Couch 
Coverston  v.  Ins.  Co. 
Cram  v.  Cram 
Cranraer,  ez  parte 
Crawford,  in  re 
Crawford  v.  Scovel 
Creely  v.  Ostrander 


234 
257 
101 
107 
10,  14 
87 


XXIV 


TABLE    OF    CASES. 


Crispell  v.  Dubois 

Crolius  V.  Stark 

Crowuinshield's  case 

Crowninshield  v.  CrowniiisLield 

Crown  V.  Thornley 

Crump  V.  Morgan 

Cudney  v.  Cudney 

Cumming,  in  re 

Cummings  v.  Henry 

Cuneo  V.  Bessoni 

Cunliife  v.  Sefton 

Currie  v.  Child 

Curtis  V.  Brownell 

Cuthbertson's  Appeal 


D. 

Dalton  V.  Dalton 
Dane  v.  Kirkwell 
Daniel  v.  Daniel 

V.  Hill 
Darby  v.  Cabann6 
Davis  V.  Davis 
V.  Rogers 
V.  State 
Day  V.  Day 
Dean  v.  Ins.  Co. 

V.  Negley 
De  Gogorza  v.  Ins.  Co. 
Delafield  v.  Parish 
Den  V.  Bennett 

V.  Johnson 

V.  Vancleve 
Dennet  v.  Dennet 
Dennis  v.  Weekes 
Denton  v.  Franklin 
De  Silver's  Estate 
Dew  V.  Clark 
Dewitt  V.  Barley 
Dexter  v.  Hall  5 

Dicker  v.  Johnson 
Dickinson  v.  Barber 
Dietrick  v.  Dietrick 
Doe  V.  Reagan 
Dornick  v.  Pieichenback 
Dorsey  v.  Warfield 
Dove  V.  State 
Dozier,  in  re 
Drake's  Appeal 
Draper  v.  Saxton 
Drummond  v.  Hopper 
Dufaur  v.  Ins.  Co. 
Duffield  V.  Robeson 
Dulany  v.  Green 
Uumond  v.  Kill' 
Dunham's  Appeal 
Durling  v.  Loveland 


23 


35, 


82 

.  87 

785 

G  a 

241 

17 

81 

100 

16 

33 

242 

242 


E. 

Eastabrook  v.  Ins.  Co. 
Eaton  V.  Eaton 
V.  Perry 
Eckert  v.  Flowry 
Eddy's  case 
Edmund's  case 
Edwards  %).  Fincham 
Egbert  v.  Egbert 
Eggers  V   Eggers 
Elder  v   Ogletree 
Elliott  V.  Ince 
Elliott's  Will 
Elston  V.  Jasper 
Emery  v.  Hoyt 
Encking  v.  Simmons 
Errickson  v.  Field 


loL 


233,  237 

9,  10 

16 

78,  80 

77,  90 

165,  167,  375 

96 

30,  258 

33,  35 

258 

255 

28,  83 

6  a,  9 

1,  13 

7,  8 

25,  29 


795 

Evans  v.  Arnold 

30,  35 

1,  6,  8 

V.  Horan 

7 

25 

82 

16,  16c 

30,  79 

Fagnan  v.  Knox 

257 

95 

Fairchild  v.  Bascomb 

257,  259 

259 

Farley  v.  Parker 

9 

96 

Farnum  v.  Brooks 

1 

233 

Farr  v.  O'Neall 

38,  78 

82 

Farrell  v.  Breman 

258 

239 

Farrer  v.  State 

174,  815 

23,  25 

Faulder  v.  Silk 

6a 

6 

Fauntleroy's  case 

784 

25,  77,  9U 

Fearon,  ex  parte 

77 

25 

Fennell  v.  Tait 

56,  242 

3 

Fentress  v.  Fentress 

101 

81 

Ferguson  v.  Barrett 

255 

77 

Fisher  v.  People 

159 

9 

Fitch  V.  Ins.  Co. 

238 

41,  42 

Fitzgerald  v.  Reed 

5 

258 

Fitzhugh  V.  Wilcox 

6  a,  8 

6  a,  9,  259,  41 

Flanagan  v.  Fenlaysou 

35 

258 

V.  People 

174 

258 

Florey  v.  Florey 

40 

77 

Ford  V.  Ford 

77 

257,  258 

Forman  v.  Smith 

25 

23,  77 

Foss  V.  Hildreth 

16 

258 

Foster  v.  Means 

17 

257 

Foote  V.  Tewksbury 

16 

100 

Fowler  v.  Ins.  Co. 

232 

77,  82 

Francke  v.  His  Wife 

101 

259 

Fraser  v.  Jennisou 

24 

16 

Frazer  v.  Frazer 

2,  61 

236 

Freed  v.  Brown 

7,  9 

7,  28,  82,  241 

Freeman's  trial 

158 

16a 

Freeman  D.  People      117, 

145,  174,  158 

90 

Freeth's  case 

158 

30 

French  v.  French 

16  6 

82 

Frere  v.  Peacock 

29 

Friery  v.  People 

210 

FuUeck  V.  Allison 

77 

Fulton  V.  Andrews 

81 

XXV 

TABLE    OF    CASES. 


G. 


Gaffey's  case 
Gahagan  v.  R.  R. 
Gaither  v.  Gaither 
Galpin  v.  Wilson 
Gamble  v.  Gamble 
Gangwere's  Estate 
Gardiner  v.  Gardiner 
Gardner  v.  Gardner 
V.  Lamback 
V.  Maroney 
Garrison  v.  Blanton 
Garrow  v.  Brown 
Gartside  v.  Isherwood 
Garvin  v.  Williams 
Gass  V.  Gass 
Gay  V.  Ins.  Co. 
Geale,  in  re 
Gelirke  v.  State 
Getchell  v.  Hill 
Gibson's  case 
Gibson  v.  Gibson 

V.  Jeyes 

V.  Soper 
Gilreath  v.  Gilreatb 
Gleespin,  in  re 
Glover  v.  Hayden 
Goble  V.  Grant 
Gombault  v.  Pub.  Adrar. 
Goodell  V.  Harrington 
Goodridge's  case 
Gore  V.  Gibson 
Grabill  v.  Barr 
Grainger  v.  State 
Grant  v.  Thompson 
Gray  v.  Obear 
Greenwood  v   Greenwood 
Griffith  V.  Diffendeitter 
Griffiths  V.  Robins 
Grubbs  v.  McDonald 
Guiteau's  case 
Guthrie  v.  Price 


448 

261 

27,  82 

1 

184 

62 

78,  258 

65,69,  71,  77 

23,  29,  85 

101 

25,  26,  74,  257 

7 

6 

82 

35 

234,  270 

95 

258 

259 

375 

258 

101 

9,  10,  12,  13,  14 

77 

24, 


'  I, 


61, 


84 

79 

77 

62 

6  a 

811 

16,  16  f/,  16  c,  65 

77 

126 

5,  6,  257 

101 

18,  25 


30 

162,  552,  603,  679 

95 


H. 

Hacker  v.  Newborn  77 

Hadfield's  case  177,  679 

Hall  V.  Hall  41,  78 

V.  Unger  41,  241 

V.  Warren  2,  62 

Hallet  V.  Oakes  16  c 

Halley  v.  Webster  30,  62,  61 

Halse,  ex  parte  101 

Haile  v.  State  205 

Hamilton  v.  Hamilton  29 

Hancock  v.  Peaty  1 7 

Hand  v.  Burrows  242 

Handley  v.  Stacey  78 

Harden  v.  Hays  30,  61,  62 

xxvi 


Hardy  v.  Merrill 
Harford  v.  Morris 
Harnett  v.  Garvey 
Harper's  Will 
Harrell  v.  Harrell 
Harrington  v.  Stees 
Harris  v.  Betson 
Harris's  case 
Harrison  v.  Rowan 


25, 


Harrison's  Will 
Hart  V.  Deamer 
Hartman  v.  Ins.  Co. 
Harvey  v.  Sullens 
Harwood  v.  Baker 
Hassard  v.  Smith 
Hathaway  v.  Ins.  Co.  237, 
Hathorn  v.  King 
Haynes  v.  Swaim 
Hazard  v.  Hefford 
Hebert  v.  Winn 
Henderson  v.  McGregor 
Henry  v.  Fine 
Hicks  V.  Marshall 
Higgins  V.  Carlton        25, 

Hinchman  v.  Richie 
Hines  v.  Potts 
Hirsh  V.  Trainer 
Hix  V.  Whittemore 
Hoard  v.  Peck 
Hoge  V.  Fisher 
Hoge's  Will 
Holcomb  V.  Holcomb 
Holden  V.  Meadows 
Holland  v.  Miller 
Holmes'  case 
Holroyd's  case 
Holyland,  ex  parte 
Hope  V.  Everhart 
Hoppin's  case 
Hopple's  Estate 
Hopps  V.  People 
Horbach  v.  Denniston 
Horn  V.  Pullman 
Home  V.  Home 
Hovey  v.  Hobson 
Howard  v   Coke 
V.  Moot 
Howe  V.  Howe 
Howell  V.  Taylor 
Hubbard  v.  Hubbard 
Hughes  V.  Murtha 
Hulings  V.  Laird 
Hunt  V.  Hunt 
Hunter  v.  State 
Huntington's  case 
Hutchinson  v.  Brown 
V.  Sandt 
V.  Tindell 


257,  258 

17 

259 

25 

78 
78 

88 

160 

26,  61,  77,  96, 

257 

77 

6  a 

284,  288 

25,  82,  90 

25,  85 

8 

241,  2.57,  259 

25,  77,  258 

2,  63 

78 

65 

1,  6,  7,  8 

8 

6  a 

29.  30,78,81, 

84,  87,  258 

104  a 

7 

6  a 

3,  51,  250 

259 

61,  250 

18,  77,  307 

242 

25 

76 

162 

779 

62 

7 

158,  712 

28,  77,  78 

159 

25 

25,  78,  81,  87 

25,  77 

9,  10 

77 

30 

9 

258 

25,  79 

77,  79 

100 

79 

787  a 

158 

16  6 

6  a 

16  a,  16  6 


TABLE   OF   CASES- 


Insurance  Co.  v.  Graves    177,  196, 


V.  Groom 

234 

V.  Hunt 

8 

V.  Isett 

V.  Lawrence 

V.  Moore 

V.  Peters 

234 

V.  Rodel 

231 

Isler  V.  Baker 

Jackman's  Will 
Jackson  v.  King 

V.  Vandusen 
Jacobs  V.  Richards 
Jacox  V.  Jacox 
James  v.  Langdon 
Jamison  v.  Jamison 
Jenckes  v.  Smithfield 
Jenisch's  case 
Jenkins  v.  Morris 
Jenners  v.  Howard 
Joest  V.  Williams 
Johns  V.  Fritchey 
Johnson  v.  Medlicott 
V.  Moore 
V.  State 
Jones  V.  Perkins 
Julke  V.  Adam 


235, 
269 
237 
242 
234 
239 
234 
241 
257 
11 


77 

30 

61,  62,  250 

255 

7,  101 

35 

25,  28.  90 

40 

476 

35 

16,  16  c 

16 

16 

5,  16  6 

35 

258 

6,  7,  16  c 

69 


K. 

Keeble  v.  Cummins  6 

Kelley  v.  State  205 

Kelly  V.  Miller  36 

Kempsey  v.  McGinnis  259 

Kendall  v.  May  1,  8, 16  c,  242 

Kessinger  v.  Kessinger  82 

Kevil  V.  Kevil  81 

Key  V.  Davis  9 

V.  HoUoway  65,  69 

Killian  v.  Badgett  7 

Kinleside  v.  Harrison  27,  80,  87,  91 

King  V.  Bryant  16 

Kings  County  Asylum,  in  re             104  a 

Kingsbury  v.  Whitaker  25,  29,  63,  71, 

250 

Kinne  v.  Johnson  25,  77,  78 

V.  Kinne  7,  25,  77 

Kirkwood  v.  Gordon  87 

Kise  V.  Heath  29 

Knapp's  case  785 

Kneedler's  Appeal  6  a,  8 


L. 


La  Bau  v.  Vanderbilt 

25,  29,  35,  59 

Lackey  v.  Lackey 

101 

Lagay  v.  Mansion 

6  a,  7,  10 

Lamoree's  case 

107 

L'Amoureux  v.  Crosby 

6a 

Lang  V.  Whidden 

5 

Laros  v.  Com. 

377 

La  Rue  v.  Gilkyson 

1,  5 

Lasher,  in  re 

101 

Lathrop  v.  Board  of  Foreig 

(1  xMissions   35 

Lawrence  v.  Inss.  Co. 

239 

V.  Steel 

24,  26 

Lawton's  case 

481 

Lee  V.  Dill 

82 

V.  Lee 

29,  36,  78,  82 

V.  Lee 

139 

V.  Scudder 

35 

Leech  v.  Leech 

35,  87 

Leeper  v.  Taylor 

25,  78 

Lefroy's  case 

552,  786  a 

Lemon  v.  Jenkins 

3 

Leverett  v.  Carlisle 

78 

Levett's  case 

128,  485 

Lewis's  case 

29 

Lewis  V.  Baird 

61,  250 

V.  Lewis 

95 

Life  Association  v.  Waller 

234 

Life  Ins.  Co.  v.  Terry 

160,  231,  237 

Lilly  V.  Waggoner 

24,  62 

Lincoln,  ex  parte 

101 

V.  Buckmaster 

1,  7 

Lindsey  v.  Lindsey 

91 

Livingston  v.  Kiersted 

242 

Logan  V.  McGinnis 

258 

Longchamp  v.  Fish 

95 

Loomis  V.  Spencer 

8 

Lowder  v.  Lowder 

90 

Lowe  V.  Williamson 

89,  258 

Lozear  v.  Shields 

1,  3,  8 

Lucas  V.  Cannon 

77,  81 

i>.  Parsons 

40,  62 

Ludwick  V.  Com. 

105 

Lynch  v.  Clements 

78 

Lyon  V.  Home 

59 

Lyons  v.  Van  Riper 

25,  77,  90 

M. 


Main  v.  Ryder 

82 

Mann  v.  Betterly 

1 

Mallory  v.  Ins.  Co. 

239 

Mansfield  v.  Watson              16,  16  a, 

166 

Marmon  v.  Marmon 

7 

Marquis  of  Winchester's  case 

77 

Marsh  v.  Tyrrell 

77 

Marshall  v.  Flinn 

78 

Martin  v.  Mitchell 

96 

V.  Perkins 

30 

xxvii 

TABLE    OF   CASES. 


Marvin  v.  Marvin 
Mason,  in  re 
Matchin  v.  Matchin 
Matthews  v.  Baxter 
Matthiesson  v.  McMahon 
Maverick  v   Reynolds 
May  V.  Bradlee 
McAdam  v.  Walker 
McAllister  v.  State 
McCiackey  v.  State 
McClintock  v.  Curd 
McClure  v.  Ins.  Co. 
McCormick  v.  Littler 
McCrillis  v.  Bartlett 
McDaniel  v.  Crosby 
McElwee  v.  Ferguson 
McFarland's  case 


McGinnis  v.  Com. 
McGregor's  case 
Mclntire  v.  McC  mn 
McLaughlon's  Will 
McMabon  v.  Ryan 
McNaghten's  case 


M'Daniel's  Will 
M'Sorley  v.  M'Sorley 
Means  v.  Means 
Meares,  in  re 
Meek  v.  Perry 
Meeker  v.  Meeker 
Menkins  v.  Lightner 
Merrill  v.  Rush 
Merritt  i'.  Iiis.  Co. 
Middleborough  v.  Rochester 
Miller  v.  Finley 

V   Smith 
Mitchell  V.  Kingman 

V.  Thomas 
Molten  V.  Camroux 

V.  Henderson 
Monroe  v.  Barclay 

V.  State 
Moody  V.  Bibb 
Mooney  v.  Olsen 
Moore  v.  Hershey 

V.  Ins.  Co. 

V.  Moore 

V.  Wolsey 
Mordaunt  v.  Moncrieffe 
V.  Mordaunt 
Morey's  Appeal 
Morgan,  in  re 
Morgan  v.  Boys 
Morrison  v.  AlcLeod 

V.  Smith 
Muller  V.  The  Association 
Murray  v.  Carlin 
Myatt  V.  Walker 


XXVlll 


78.  81 
101 

18 

7,  16 

1,  7,  8 

87 

79,  81 
63 

117 

257 

25 

232 

1.  2,  7 

1,  13,  16,  16c 

77,  78 

25 

126,  152,  160,  174, 

412 

105 

200 

77 

69 

78 

117,  119,  145,  578, 

679 

77 

71 

88 

16  c 

82 

24 

16  ff,  61,250 

29 

234,  241 

17 

16 


25, 


259 

5,  16  a 

96 

7,  8 

100 

78 

126 

109 

81 

7 

284 

95 

239 

18 

18 

106 

101,  107 

29,  86 

16a 

30 

81,  82 


N. 

Nailer  v.  Nailor  101 

Nash  V.  Hunt  79 

Neal's  case  270 
Needham  v.  Ide                             101,  260 

Negro  Jerry  v.  Townshend  259 

Neill  V.  Morley  1 

Nelson  v.  Buncombe  1 

Newell  V.  Fisher  16 

Newhouse  v.  Godwin  28,  82 

Newton  v.  Ins.  Co.  232 
Nichol  V.  Thomas               6  a,  10,  14,  19 

Nichols  V,  Biuns  63,  83 

V.  Nichols  18 

V.  State  215 

Nimick  v.  Ins.  Co.  284 

Noel  V.  Karper  255 

Northington,  ex  parte  1,  8 

Norton  v.  Relley  59 

Nottridge  v.  Ripley  104  a 

Nussear  v.  Arnold  77 


0. 


Oliver  v.  Berry  95,  96 

O'Neall  V.  Parr  78 

Osmond  v.  Fitzroy  28 

Osterhout  v.  Shoemaker  3 

0 wing's  case  1 

Owston,  in  re  95 


P. 


Paine's  case  787  a 

Palmer's  case  774 

Pancoast  v.  Graham  65 

Parfitt  V.  Lawless  78,  81,  82 

Paske  V.  OUatt  82 

Pate's  case  679 

Patrick  v   Ins.  Co.  288 

Patterson  v.  Patterson  77 

Payn,  in  re  100 

Pearl  v.  McDowell  1 

Peck  V.  Carey  65,  74 

Penfold  V.  Ins.  Co.  239 

Pennsylvania  v.  M'Fall  205,  214 

People  V.  Coffman  117,  174 

V.  Coleman  133 

V.  Eastwood  261 

V.  Furbush  578 

V.  Garbutt  875 

V.  Griffin  578 

V.  Hammell  214 

V.  Klein  578 

v.  McCann  259 

V.  McDonell  174 

V.  McLeod  126 

V.  New  York  Hospital  242 


TABLE    OF    CASES. 


People  V.  Pine 

V.  Robinson 

V.  Rogers 

V.  Sanford 

V.  Shorter 

V.  Smith 

V.  Sprague 

V.  Wheeler 
Perkins  v.  R.  R. 
Persse,  ex  parte 
Pettit,  ez  parte 
Peterson's  case 
Phadenhauer  v.  Ins.  Co. 
Phelan  v.  Gardiner 
Phillips  V.  Ins.  Co. 

V.  Starr 
Phipps  V.  Van  Kleeck 
Pickett  V.  Sutler 
Pierce  v.  Ins.  Co. 

V.  Pierce 
Pigg  V.  State 
Pigman  v.  State 
Pingree  v.  Jones 
Pirtle  V.  State 
Pitt  V.  Smith 
Pittenger  v.  Pittenger 
Plank,  ex  parte 
Pool  V.  Pool 
Poole  V.  Richardson 
Porter  v.  Campbell 
Portsmouth  v.  Portsmou 
Potts  V.  House 
Powell  V.  State 
Prentice  v.  Achorn 
Price  V.  Berrington 
Purdon  v.  Longford 


Queen  v.  Farmer 
V.  Ley 


126,  377,  566 

214 

210 

257 

126,  174 

375 

117,  578 

805 

259 

100 

101 

806 

234,  237,  241 

16 

234 

259 

90 

16 

239 

65,  69,  72,  79 

239,  259 

205,  215 

77 

205,214 

5,  10,  16,  16  a 

166 

117 

78 

258,  260 

62 

17 

23,  87,  258 

257 

166 

7,  8 

7,8 


399 
158 


th 


Rabb  V.  Graham 

77,  78 

Rabello's  case 

578 

Ragan  v.  Ragan 

25 

Rambler  v.  Tryon 

24,  2.57 

Rankin  v.  Rankin 

77,  257 

Rathbun  v.  Rathbun 

18 

Rawdon  v.  Rawdon 

17 

Ray  V.  Hill 

96 

Read  v.  Legard 

1 

Real  V.  People 

257,  258 

Reed's  Will 

88,  90 

R.  V.  Barton 

117,  152,  164 

V.  Bellingham 

679 

V    Burton 

127 

V.  Carroll 

216 

R.  V.  Davies 
V.  Davis 
V   Dwerryhouse 
V.  Eriswell 
V.  Frances 
V.  Francis 
V.  French 
V.  Gamlen 
V,  Goode 
V.  Goule 
V.  Grindley 
V.  Hadfield 
V.  Haynes 
V.  Higginson 
V.  Hill 
V.   Jackson 
V.  Law 
V.  Lawtoa 
V.  Layton 
V.  Leigh 
V.  McNaghten 


V.  Meakin 
V.  Milligan 
V.  Monkhouse 
V.  Moore 
V.  Morley  , 
V.  Offord 
V.  Oxford 


200  ffl 
209 
200  a 
242 
259 
679 
491 
215 
117,  164,  200  a 
399 
216 
679 
152 
117,  164,  259 
50,  242 
491 
118 
481 
117, 164,  250 
165 
117,  119,  145,  578, 
679 
204,  209,  210 
490 
215 
215 
242 
117 
117,  119,  164,  375,  578, 
679 
679 
201 
98 
115,  152,  259 
165 
117,  250 
215 
250 
204,  209,  210,  216 
127,  165 


V.  Pate 

V.  Pearce 

V.  Pritchard 

V.  Richards 

V.  Southey 

V.  Stokes 

V.  Stopford 

V,  Taylor 

V.  Thomas 

V.  Townley 

V.  Tucket  375 

V.  Turton  200  a 

V.  Vaughan  117 

V.  Vyse  118 

V.  White  606 

V.  Whitfield  98 

Reinecker  v.  Smith  16 

Rennie's  case  204,  209 

Reynolds  v.  Adams  81 

V.  Decliaums  16 

V.  Reynolds  95 

V.  Robinson  259 

V.  Root         25,  27,  29,  80,  81, 

87,  90 

Rhodes  v.  Bate  6 

Rice  V.  Peck  5,  16  a 

Richardson  v.  Dubois  1 

V.  Strong  1,16  a 

Riddell  v.  Johnson  30,  82 

Ridgeway  v.  Darwin  101 

Riggs  V.  The  Society  8 

xxix 


TABLE    OF   CASES. 


Ritter's  Appeal 
Roberts  v.  People 

V.  State 

V.  Trawick 
Robinson  v.  Adams 
Robinson's  case 
Roe  V.  Taylor 
Rogers's  case 
Rogers  v.  Diamond 

V.  Walker 
Rollwagen  v.  Rollwngen 
Rudy  V.  Ulrich 
Runyan  v.  Price 
Rush  V.  Megee 
Rusk  V.  Fenton 
Russell,  in  re 

V.  State 
Rutherford  v.  Morris 

V.  Ruff 


69 

198,  209 

126 

83 

30,  34,  35,  59 

814 

77 

210 

78 

9 

77,  80 

82 

258 

2,  30,  61,  62 

8,  9,  10 

101 

259 

24,  81,  84, 

90,  257 

6,  7,  16  6 


Sadleir's  case 

821 

iSarbach  v.  Jones 

242 

Sargeson  v.  Sealey 

6a 

Sawyer  v.  Lufkia 

1,  16c 

V.  State 

377 

Say  V.  Barwick 

16  a 

Scanlan  v.  Cobb 

217 

Scheffer  v.  Ins.  Co. 

234 

Scribner  v.  Crane 

77,  90 

Scruhy  v.  Fordham 

83 

Seaman's  Friend  Soc.  v.  Hopp 

er          39 

Searle  v.  Galbraith 

5,  7 

Sears  v.  Schafer 

258 

Seaver  v.  Phelps 

5 

Sechrest  v.  Edwards 

77,  78 

Seeley  v.  Price 

6,  7 

Sequine  r.  Sequine     • 

78 

Seymour  v.  Delancy 

16a,  16  6 

Shailer  v.  Bumstead 

78 

Shakespeare  v.  Markham 

1,  17,  90 

Shannahan  v.  Com. 

210 

Shaul,  ill  re 

101 

Shaw  V.  Dixon 

101 

V.  Thackray 

166 

Sherman's  case 

790 

Sherwood  v.  Sanderson 

101 

Shorter  v.  People 

126, 174 

Shropshire  v.  Reno 

25 

Sickles'  case 

158 

Sill  V.  McKnight 

105 

Sills  V.  Brown 

259 

Sims  V.  McClure 

8 

Sisson  V.  Conger 

258 

Skidmore  v.  Romaine 

1,  8,-  76 

Sloan  V.  Maxwell               25,  77,  87,  258 

Sloo's  case 

126 

Smee  v.  Smee                25,  30, 

34,  46,  47 

7,  209, 
373, 

33,  45 
29 


50,  242, 


2,3, 
161, 


117, 
145, 


Smith  V.  Com. 

V.  Kramer 

V.  Smith 

V.  Tebbitt 
Smith's  Will 
Snook  V.  Watts 
Snow  V.  Benton 

Snyder  v.  Sherman  7E 

Somers  v.  Pumphrey 
Somerset  (countess  of),  case  of    787, 
Somes  0.  Skinner 
Spear's  case 
Spear  v   Richardson 
Spittle  V.  Walton 
Sprague's  case 
Stackhouse  v.  Horton 
Stancell  v.  Kenan 
Standerman's  case 
Stanton  v.  Wetherwax 
Staples  V.  Wellington 
Starrett  v.  Douglas 
State  V.  Brandon 

V.  Christmas 

V.  Coleman 

V.  Felter 

V.  Gardiner 

V.  Gut 

V.  Hundley 

V.  Huting 

V.  John 

V.  Klinger 

V.  Lawrence 

V.  McCants 

V.  McGonigal 

V.  Medlicott 

V.  Patten 

V.  Pike         24,  108,  111,  190, 

V.  Pratt 

a.  Powell 

V.  Pieddick  i 

V.  Richards 

V.  Scott 

V.  Se.well 

V.  Spencer 

V.  Thompson 

V.  Turner 

V.  Wellington 

V.  Windsor 
Stedham  v.  Stedham 
Steed  V.  Galley 
Stevens  v.  State 

V.  Vancleve 
Stewart  v.  Lispenard 
St.  Leger's  Appeal 
Stone  V.  Damon 

Stormont  v.  The  Assurance  Co. 
Stringfellow's  case 
Stuckey  v.  Bellah 
V.  Mathes 
Stulz  V.  Schaefiie 
Sutherland  v.  Hawkins 


117, 


117,  145, 


205, 
117,  174, 


61,  66, 
136, 


108, 
25,  26,  61,  77 


175 
375 
30 
,  61 
,  59 
255 
377 
,  81 
1 
805 
3,5 
158 
259 
243 
573 
40 
25 
476 
40 
241 
65 
174 
375 
258 
160 
174 
160 
205 
145 
205 
259 
174 
205 
206 
259 
201 
258 
105 
259 
,  61 
174 
126 
250 
250 
205 
205 
250 
174 
74 
62 
159 
,  83 
23 
82 
6a 
236 
789 
257 
17 
,78 
257 


XXX 


TABLE    OF    CASES. 


Sutton  V.  Sadler 
V.  Sutton 
Swan  V.  State 


T. 

Tate  V.  Tate 
Tawney  v.  Long 
Taylor  v.  Creswell 

V.  Kelley 

V.  Patrick 
Tebout,  in  re 
Temple  v.  Temple 
Thomas  v.  Stump 
Thompson  v.  Davitte 

V.  Kyner     25, 
V.  Leach 
V.  Quimby 
V.  Thompson 
Tiebborne's  case 
Tingley  v.  Cowgill 
Titcomb  v.  Vantyle 
Titlow  V.  Titlow 
Tobin  V.  Jenkins 
Tod's  case 
Todd  V.  Fenton 
Tomkins  v.  Tomkins 
Tomlinson,  cz  j^arle 
Towushend  v.  Townshend 
Tozer  v.  Saturlee 
Tracy,  ex  parte 
Trish  V.  Newell 
Trumbull  v.  Gibbons 
Tufnell  V.  Constable 
Turner  v.  Cheeseman 

V.  Hand 

V.  Meyers 

V.   Rusk 
Tyson  v.  Tyson 


U.S. 


62 

77 

205,  214 


39 

28,  35,  77,  78 

30,  61 

•25 

107 

65 

81 

78 

26,  69,  78,  83 

5,  9 

35.  36 

35,  36 

786 

77,  81.  82 

1,  7,  101 

257,  258 

24,  77,  78 

799 

78,  81 

24,  28 

101 

257 

2 

301,  107 

24,  26,  250 

29,  84 

28 

65 

38 

17 

3,  9,  61 

24,  78 


rzook  V.  Com. 

787  a,  824  a 

V.  Clarke 

205 

V.  Drew 

204,  205 

V.  Forbes 

204 

V.  Hewson 

155 

V.  Holmes 

174 

V.  McGlue 

204,  205,  259 

V.  Reynolds 

137 

V.  Roudenbush 

215 

V.  Shultz 

•     117,  174 

Valpey  v.  Rea 
Van  Alst  v.   Hunter 
Vanauken,  ez  parte 


9 

87,  89 
33,  90,  258 


Vance  v   Com.  117,  174 

Van  Deusen  v.  Sweet  9 

Van  Guysling  v.  Van  Kuren  25 

Van  Horn  v.  Hann  1,  16c 

Van  Zandt  v.  Ins.  Co.  232,  234 


W. 


Wade  V.  Colvert  16 

Wadsworth  v.  Sherman  6  a 

Wager,  ez  parte               _  101,  107 

Wager  v.  Reid                 '  16  a,  16  6 

Wainwright's  Appeal  82,  79 

Wait  V.  Breeze  79 

Walker  v.  Davis  16 

V.  Walker  258 

Waltz's  case                              '  443 

Wampler  v.  Wampler  96 

Ward  V.  Dulaney  17 

Ware  v.  Ware  258 

Waring  v.  Waring  42 

Watson's  case  166 

Interdiction  101,  104 

Watson  V.  Watson  90 

Webster's  case  808 
Weed  V.  Ins.  Co. 
Weems  v.  Weems         101 
Weir  V.  Fitzgerald 
Weir's  Will 

Wenraan  (Lord),  case  of, 
Weston's  case 
Wetter  v.  Habersham 
Wheeler  v.  Alderson 
Whitaker's  case 
White  V.  Cox 

V.  Driver 

V.  The  Assurance 

V.  Wilson 

Whitenach  v.  Stryker 

Wigglesworth  v.  Steer 

Wightman  v.  Wightman 

Wilder  V.  Weakly  8 

Wilkinson  v.  Moseley  ^  257,  259 

V.  Pearson  '    257 

Willemin  v.  Dunn  1,  7,  90 

Willey  V.  Portsmouth  259 

Williams'  Estate  77 

Williams  v.  Goude  78 

V.  Inabnet  16 

V.  Lee  257 

V.  Wentworth  1 

Wilson  V.  Bigger  16  a 

V.  Moran  82 

V.  Oldham  7 

Winter's  case  106,  198 

Wintermute  v.  Wilson  84,  90 

Wirehach  v.  Bank  7,  8,  16 
Wisener  v.  Maupin                     25,  77,  90 

Wiser  v.  Lockwood  17 

Wolf  t).  Ins.  Co.  241 
xxxl 


232,  241 

,  232,  241,  257 

9,  95 

83 

3,  101 

809 

30 

68,  257 

811 

166 

61,  62 

236 

40,  61 

69 

16,  166 

17 


Co. 


TABLE    OF   CASES- 


Wood  V.  Wood 

25 

Yauger  v.  Skinner 

8 

Woodbury  v.  Obear 
Worthy  v.  Woi'thy 
Wray  v.  Wray 
Wright  V.  Hardy 
V.  Howe 

259 
18 
18 

259 

78,  82 

Yglesias  v   Dyke 
Yoe  V.  McCord 
Young  V.  Barner 

V.  Ridenbaugh 
V.  Stevens 

24, 
63, 

44 

77 

83 

25 

8 

V.  Tatham 

257 

Y. 

Z. 

Zimmerman  v.  Zimmerman 

77 

Yates  V.  Boen 

5 

Zwanziger's  case 

783 

XXXll 


MEDICAL  JURISPRUDENCE. 


BOOK  I. 

MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


CHAPTER  I. 


CONTRACTS. 


I.  Lunacy. 

Lunatics  in  any  view  liable  for  neces- 
saries, §  1. 

Also  liable  for  contracts  during  lucid 
intervals,  §  2. 

Monomania  does  not  incapacitate  on 
other  topics,  §  3. 

By  early  authorities  lunacy  no  ground 
for  avoidance,  §  4. 

Svibsequent  tendency  to  hold  all  con- 
tracts with  lunatics  void,  §  5. 

Question  conditioned  by  fraud,  §  6. 

Inquisition  only  prima  facie  proof  to 
third  parties,  §  6  a. 

Better  opinion  that  contracts  by  luna- 
tics are  voidable  at  option,  §  7. 

Contracts  executed  in  good  faith  will 
be  sustained,  §  8. 

Conflict  as  to  whether  deeds  are  void- 
able, §  9. 

In  rescission  parties  to  be  placed  in 
statu  quo,  §  10. 


Partnership  contracts  not  dissolved,  ip- 
so facto,  by  lunacy,  §  11. 

Administrators  may  avoid  contract  of 
insane  decedent,  §  12. 

And  so  of  representatives  and  guar- 
dians, §  13. 

And  so  of  party  himself,  §  14. 

Lunatic  liable  for  torts,  §  15. 

II.  Intoxication. 
Intoxication  alone,  unless  excessive,  no 

ground  for  avoiding  contract,  §  16. 
Otherwise  when  acted   on  by  fraud,  § 

16  rt. 
Rule  in  equity,  §  16  6. 
Drunkard  liable  for  necessaries,  §  16  c. 

III.  Marriage  Contracts. 
Distinctive  rule  as  to  marriage,  §  17. 
Rule  as  to  divorce,  §  18. 


I.    LUNACY. 

§  1.  Persons  not  only  apparently  but  actually  destitute  of  reason 
are  incapable  of  dealing  contractually.     Hence  the  in- 
capacity of  idiots,  when  complete,  is  absolute.     Mere    an°view^" 
mental  imbecility,  however,  is  not  sufficient  to  set  aside   I'^^ie  for 

necessaries. 

a  contract  where  there  is  not  an  essential  privation  of 
the  reasoning   faculties  or  an   incapacity  to   understand   and  act 
VOL.  I. — 1  1 


§2.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


■with  discretion  in  the  ordinary  affairs  of  life.  The  law  cannot 
undertake  to  measure  the  validity  of  contracts  by  the  greater  or 
less  strength  of  the  understanding;  and  if  the  party  be  compos 
mentis,  the  mere  weakness  of  his  mental  powers  does  not  incapaci- 
tate him.^  To  sustain  a  contract  made  by  him,  there  being  no  un- 
due advantage  taken,  it  is,  in  general,  sufficient  to  show  that  the 
party  contracting  knew  what  he  was  about. ^  If  he  is  incapable 
of  such  knowledge  ;  if,  in  other  words,  he  is  either  an  idiot  or  a 
maniac,  not  capable  of  knowing  what  he  is  about — then  he  is  inca- 
pable of  contracting.  But  in  any  view  it  may  be  regarded  as 
settled  both  at  law  and  in  equity  that  a  lunatic's  estate  is  liable  for 
necessaries  furnished  to  him,^  and  the  lunatic  himself,  or  his  admin- 
istrator, and  not  his  guardian,  must  be  sued  on  such  debts.* 

§  2.  Where  the  disease  is  of  such  a  character  that  lucid  intervals 
exist,  the  power  to  contract  returns  with  the  return  of  reason,  and 


'  Somers  v.  Pumphrey,  24  Ind.  231, 
Elliott,  C.  .J.  ;  Mann  v.  Betterly,  21  Vt. 
326  ;  Farnum  v.  Brooks,  9  Pick.  212  ; 
Baldwin  v.  Dunton,  40  111.  188  ;  Tit- 
comb  r.Vantyle,  84  111.  371;  Willemiu  i-. 
Dunn,  93  111.  511  ;  Campbell  v.  Hooper, 
3  Sm.  &  G.  153  ;  Henderson  v.  McGregor, 
30  Wis.  78.  Tke  jury  may  consider 
how  far  the  party  was  liable  to  be  de- 
ceived, though  the  incapacity  was  only 
partial.  Galpin  v.  Wilson,  40  Iowa,  90. 
See  also  Shakespeare  v.  Markham,  72 
N.  Y.  400,  and  Cadwallader  v.  West,  48 
Mo.  483.  In  this  last  case  it  was  said 
that  wherever  inadequacy  of  considera- 
tion and  mental  weakness  concur,  the 
contract  should  be  annulled.  And  see 
Owing's  case,  1  Bland,  370,  390. 

2  Lozear  v.  Shields,  23  N.  J.  Eq.  509  ; 
Clearwater  v.  Kimler,  43  111.  272 ;  My- 
att  V.  Walker,  44  111.  485  ;  Emery  v. 
Hoyt,  46  111.  258  ;  Cadwallader  v.  West, 
48  Mo.  483  ;  Ball  v.  Mannin,  3  Bligh 
(N.  S.)  I. 

8  Baxter  v.  Earl  of  Portsmouth,  5  B. 
&  C.  170;  7  D.  &  R.  614  ;  Neill  v.  Mor- 
ley,  9  Ves.  Jr.  478  ;  Dane  v.  Kirkwall, 
8  C.  &  P.  679  ;  Sawyer  v.  Lufkin,  56 


Me.  308  ;  McCrillis  r.  Bartlett,  8  N.  H- 
569 ;  Lincoln  v.  Buckmaster,  32  Vt. 
652;  Kendall  r.  May,  10  Allen,  59; 
Skidmore  i'.  Romaine,  2  Bradf.  (N.  Y.) 
122  ;  La  Rue  v.  Gilkyson,  4  Penn.  St. 
375  ;  Bank  v.  Moore,  78  Penn.  St.  407  ; 
Matthieson  v.  McMahon,  38  N.  J.  L.  537  ; 
Van  Horn  v.  Haun,  39  N.  J.  L.  207; 
McCormick  v.  Littler,  85  111.  62  ;  Pearl 
V.  McDowell,  3  J.  J.  Marsh.  658  ;  Cole- 
man y.  Frazer,  3  Bush,  300  ;  Richard- 
son V.  Strong,  13  Ired.  L.  106 ;  North- 
ington  ex  parte,  37  Ala.  496.  In  Read 
V.  Legard,  6  Ex.  636,  it  was  decided 
that  the  maintenance  and  support  of  a 
wife  is  a  necessary  ;  where,  however, 
the  husband  gives  his  wife  a  suitable 
allowance,  he  is  not  liable  for  her  debts 
contracted  with  a  party  who  knew  of 
his  lunacy.  Richardson  v.  Dubois,  L. 
R.  5  Q.  B.  51.  The  expenses  of  a  com- 
■  mission  are  a  necessary  protection  for 
the  party  and  his  estate,  even  though 
he  is  found  sane  thereby.  Nelson  v. 
Duncombe,  9  Beav.  211  ;  Williams  v. 
Wentworth,  5  Beav.  325. 

*  See  Van  Horn  v.  Hann,  39  N.  J.  L. 
207. 


CONTRACTS.  [§  3. 

a  contract  made  in  a  lucid  interval  is  valid. ^     Since,  however,  as 
will  presently  be  seen  more  fully,  insanity  of  a  permanent 
type  is  continuous,  the  party  alleging  a  lucid  interval  will    for  con- 
be  required   to   prove    its   actual   existence.^      On  the    ing- lucid  ' 
other  hand,  where  the  disease  is  in  its  nature  periodic    i°*'^'"^'^^^- 
or   temporary,  the    presumption   of    incapacity  does   not   apply.^ 
By  a  lucid  interval,  moreover,  "  is  not  meant  a  perfect  restora- 
tion to  reason,  but  a  restoration  so  far  as  to  be  able,  beyond  doubt, 
to  comprehend  and  to  do  the  act  with  such  perception,  memory, 
and  judgment  as  to  make  it  a  legal  act."^     It  is  sufficient,  to  estab- 
blish  such  lucid  intervals,  to  prove  that  the  party  had  sufficiently 
recovered  his  reason  to  know  what  he  was  about.     A  discharge 
from  a  lunatic  asylum  is  oulj  prima  facie  evidence  of  restoration  to 
sanity.' 

§  3.    Nor  do  delusions  or  hallucinations  avoid  capacity  if  not 
touching  the  subiect  matter  of  a  contract.^     While  every  ,, 

o  0  ...  Monomania 

man  is  presumed  to  be  sane,  chronic  insanity,  when  once  does  not  in- 

.        .  ,  •  T      -r.  1  ■      capacitate 

proved  to  exist,  is  presumed  to  continue.^  Jout  there  is  on  other 
no  such  presumption  of  law  as  to  the  .continuance  of  a  °^^^^' 
temporary  hallucination  or  delusion  arising  from  disease ;  the  party 
seeking  to  avoid  a  contract  by  reason  of  a  hallucination  must 
show  its  existence  at  the  time  of  making  the  contract,  and  that  the 
hallucination  was  of  a  character  aifecting  his  capacity.  To  the 
effect  that  there  is  no  presumption  of  permanence  in  the  case  of  in- 
termittent delusions  caused  by  disease,  there  are  numerous  authori- 

>  Story  on  Contracts,   §  74;  Hall  v.  Bush,    283;   Aurentz   v.  Anderson,   3 

Warren,  9  Ves.  Jr.  605  ;  Tozer  v.  Sat-  Pitts.  310.| 

urlee,    3  Grant  (Pa.),  162  ;    Frazer  v.  *  Frazer  v.  Frazer,  ubi  supra. 

Frazer,  2  Del.  Ch.  260  ;  McCormick  v.  ^  Haynes  v.  Swann,  6  Heisk.  (Tenn.) 

Littler,  85  111.  62 ;  Jones  v.  Perkins,  5  560. 

B.  Mon.  222 ;  Blakeley  v.  Blakeley,  33  e  Infra,  §  34  ;  Staples  v.  Wellington, 

N.  J.  Eq.  502.  58  Me.  453  ;  Dennet  v.  Dennet,  14  N.  H. 

2  Staples  V.  Wellington,  58  Me.  454;  531  ;  Somes  v.  Skinner,  16  Mass.  348; 
Frazer  v.  Frazer,  2  Del.  Ch.  260;  Osterhout  z;.  Shoemaker,  3  Hill  (N.  Y.) 
Aurentz  v.  Anderson,  3  Pitts,  310  ;  573  ;  Banks  v.  Goodfellow,  L.  R.  5  Q. 
Kush  V.  Megee,  36  Md.  69  ;  State  v.  B.  256  ;  so  in  Lozear  v.  Shields,  23  N.  J. 
Reddick,  7  Kan.  143 ;  Atty.  Gen.  v.  Ex.  509,  where  there  was  religious 
Parnther,  3  Bro.  C.  C.  441.  monomania  ;  Emery  v.  Hoyt,  46  111.  258  ; 

3  Brown  v.  Riggin,  94  111.  560 ;  so  of  Boyce  v.  Smith,  9  Gratt.  704 ;  Lemon 
epileptic  fits,  Carpenters;.  Carpenter,  8  v.  Jenkins,  48  Ga.  313. 

7  Wh.  on  Ev.  §  1252  ;  supra,  §  2. 

3 


§  4.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

ties,^  and  it  is  now  well  settled  that  delusions  and  hallucinations 
must  directly  affect  the  act  in  question  in  order  to  incapacitate.^ 
Whether  an  existing  delusion  as  to  the  subject  matter  of  the  con- 
tract affects  the  capacity  to  contract  is  a  question  for  the  jury.^ 
But  when  the  delusion  or  hallucination  goes  to  the  essence  of  the 
contract,  and  sways  the  party  when  making  the  contract,. then  he 
must  be  regarded  in  this  relation  as  without  contracting  power.* 

§  4.  The  early  common  law  authorities  inclined  to  the  position 
g      ^j  that,  as  no  man  could  be  allowed  to  stultify  himself,  so  no 

thorities        man  could  set  up  his  own  insanity  at  the  time  of  a  con- 
lunacy  no  1     f         ■  T        •    \       A       ^  .. 
ground  for    tract  as  the  ground  of  avoidmg  it.*     At  the  same  time  it 

avoidance.     ^^^^  conceded  that  this  right  of  avoidance  belonged  to 

the  alleged  lunatic's  heirs  and  administrators,^     The  restriction, 

therefore,  was  purely  personal,  and  was  based  on  a  mistaken  view 

of  insanity.     Insanity  was  deemed  to  be  perpetual.      If  it  existed 

at  the  time  of  the  contract,  it  existed  when  suit  was  brought.     If 

it  did  not  exist  when  suit  was  brought,  it  did  not  exist  at  the  time 

of  the  contract. 

The  progress  of  this  idea  is  traced  by  Blackstone,^  so  far  as  it 

relates  to  the  conveyances  of  lunatics.     It  seems  to  have  rested 

chiefly  on  the  authority  of  Lord  Coke,  as  Fitzherbert,  Britton,  and 

Bracton  were  directly  opposed  to  him.^     But  it  cannot  be  said  ever 

to  have  been  law  in  America,  and  has  been  exploded  in  England, 

though  followed  by  Lord  Tenterden  in  1827.^ 

'  Supra,  §  2  ;  Hix  v.  Whittemore,  4  7  2  Bl.  Com.  291. 

Mete.   545  ;  Turner  v.  Rusk,  53  Md.  65  «  Nat.  Brev.202;  Bracton,  fol.  100a; 

(1880)  ;  Achey  v.  Stephens,  8  Ind.  411.  Britton,  c.  28,  fol.  (56. 

2  Cases  supra;  see  infra,  §§  34  et  seg.  ^  Brown  v.  Joddrell,   3  C.  &  P.  30. 

3  Jenkins  v.  Morris,  L.  R.  14  Ch.  D.  Mr.  Pollock  says  that  the  doctrine  was 
674(1880).  In  this  case  P.,  tlie  lessor  exploded  long  before  it  was  adopted 
of  certain  property,  was  laboring  under  by  Lord  Tenterden.  See  Pollock  on 
the  delusion  that  it  was  impregnated  Contracts,  p.  78.  Stephen,  however 
with  sulphur  ;  in  other  respects  he  was  (1  Com.,  7th  ed.  475),  considers  the 
a  shrewd  business  man.  The  jury  found  maxim  still  to  be  one  of  law  as  regards 
the  lease  valid.     See  infra,  §  5.  transactions  merely  voidable  ;  though 

*  Banks  v.  Goodfellow,  L.  R.  5  Q.  it  has,  he  says,  no  application  to  trans- 
B.  549.     And  see  infra,  §§  46,  48.  actions   absolutely  void,  such  as  con- 

5  Co.  Litt.  247  a.  veyances  other  than  feoffments. 

6  Co.  Litt.  241b.    Beverley's  case,  4 
.Rep.  123  6. 

4 


CONTRACTS.  [§  5. 

§  5.  The  early  doctrine,  then,  was  that  the  contract  of  a  lunatic 
could  only  be  avoided  after  his  death  by  his  heirs  or  rep- 
resentatives ;  but  the  cases  of  Thompson  v.  Leach^  and   tendency  to 
Yates  V.  Boen^  overthrew  this,  and  took  the  ground  that,    ^°^^  ^^\ 

'  °  '     contracts 

with  the  exception  of  feoifments,  which  from  their  solemn    with  luna- 

tics  void. 

nature  could  be  only  voidable,  the  deeds  and  contracts 
of  persons  incompetent  not  only  from  insanity,  but  from  drunken- 
ness,^  were  void.  And  though  it  was  held  by  Sir  Joseph  Jekyll 
that  intoxication  does  not  destroy  capacity  to  contract,  unless  it  be 
shown  that  the  drunkenness  was  contrived  by  the  other  party,* 
Lord  Ellenborough  inclined  to  the  view  that  drunkenness  by  itself 
is  sufficient  to  avoid  an  agreement.^  In  this  country,  several  early 
cases  took  the  ground  that  the  contracts  of  a  lunatic,  executed  or 
unexecuted,  are  per  se  void,  unless  for  necessaries.®  This  is  un- 
questionably correct  in  cases  where  the  absence  of  mental  capacity 
is  so  obvious  as  to  make  dealing  with  the  lunatic  a  fraud.  But 
unless  there  is  such  a  total  deficiency  in  capacity,  it  is  not  reason- 
able to  hold  that  a  contract  entered  into  in  good  faith  with  a  lunatic 
is  void.  Lunacy  may  be  for  years  latent,  and,  at  all  events,  where 
not  amounting  to  idiocy  or  mania,  it  is  a  condition  as  to  which 
there  can  be  no  such  fixed  and  obvious  rule  laid  down  as  will  give 
-security  to  purchasers.  If  all  contracts  of  persons  mentally  un- 
sound are  void,  no  matter  what  may  be  the  degree  of  the  unsound- 
ness, no  title  to  property  of  any  kind  would  be  secure.  Some  prior 
vendor  may  have  been  insane;  his  conveyance  was,  therefore,  void  ; 
and  hence  the  title  is  incomplete.  And  even  against  a  party 
contracting  immediately  with  the  alleged  lunatic,  the  contract,  if 
bona  fide  and  fair  on  both  sides,  ought  not  to  be  set  aside  on  the 
ground  of  latent  lunacy.' 


1  3  Salk.  300  ;  Comb.  468  ;  2  Ventr.  ner,  16  Mass.  348  ;  Grant  v.  Thompson, 
198.  4  Conn.  208  ;  Rice  v.  Peck,  15  Johns. 

2  2  Str.  1104.  503  ;  La  Rue  v.  Gilkyson,  4  Penn.  St. 

3  Cole  V.  Robbins,  Bull.  N.  P.  172.  375  ;  Fitzgerald  v.  Reed,  9  Sm.  &  Marsh. 
*  Johnson   v.    Mellicott,  3  P.  Wms.  (Miss.)    94.     And  see  the  remarks  of 

130.  Strong,  J.,  in  Dexter  v.  Hall,  15  Wall. 

6  Pitt  V.  Smith,  3  Camp.  33.  20. 

B  Lang   V.  Whidden,  2  N.  H.  435  ;  ^  Searle  v.  Galbraith,  73  111.  269.  In 

Burke  v.  Allen,  29  N.  H.  106  ;  Mitchell  Jenkins  v.  Morris,  L.  R.  14  Ch.  D.  674, 

V.    Kingman,    5   Pick.  431  ;    Seaver  v.  before  alluded  to,  the  lessor  of  a  farm 

Phelps,  11  Pick.  304 ;  Somes  v.  Skin-  believed  that  it  was  impregnated  with 

5 


§7.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


§  6.  A  party  dealing  with  notice  with  an  insane  person,  except  for 
^     ^.  necessaries,  is  charo-eable  with  fraud  ;  and  where  there 

Question  .  . 

conditioned    is  fraud   independently  shown,    a  comparatively   slight 

degree  of  mental  debility  will  suffice  to  sustain  a  decree 
setting  aside  a  contract  with  the  party  imposed  upon.^  Imbecility? 
or  partial  hallucination,  if  there  be  fraud,  will  be  a  ground  for 
setting  aside  a  contract,  which  would  have  been  sustained  without 
fraud. ^ 

^  6  a.  As  to  strangers,  an  inquisition  of  lunacy  is  only  prima 
Inouisition    f^^^^  proof  of  businoss  incompetency,  though   it   binds 
parties.^ 

That  it  is  admissible  as  prwia  facie  proof  as  to  third 
parties  is  generally  held;*  though  on  principle,  its  ad- 
mission is  open  to  the  serious  objection  of  being  res  inter  alios  acta.^ 
§  T.  That  w^hen  a  contract  has  been  produced  by  fraud,  acting 
upon  mental  debility  or  eccentricity,  it  will  be  set  aside  in  equity, 
is  settled.^  And  it  is  further  settled  that  the  mere  act  of  contract- 
ing with  a  lunatic,  except  for  necessaries,  is  fraudulent  in  all  cases 


oviXy  prima 
facie  proof 
to  third 
parties. 


sulphur,  and  was  at  the  pains  to  try 
many  experiments  to  rid  himself  of  it. 
A  jury  found  him  of  sufficient  business 
capacity  to  make  a  valid  lease  thereof. 
The  Court  of  Appeals  refused  to  dis- 
turb the  verdict. 

'  Gartside  v.  Isherwood,  1  Bro.  C.  C. 
558  ;  Dane  v.  Kirkwall,  8  C.  &  P.  679  ; 
Den  V.  Bennett,  7  Sims,  539 ;  Rhodes 
V.  Bate,  L.  R.  1  Ch.  App.  252  ;  Grant 
V.  Thompson,  4  Conn.  208  ;  Seeley  v. 
Price,  14  Mich.  541  ;  Henderson  v.  Mc- 
Gregor, 30  Wis.  78 ;  Rutherford  v. 
RufiF,  4  Dessaus.  350. 

2  Beals  V.  See,  10  Penn.  St.  56; 
Jones  V.  Perkins,  5  B.  Mon.  222 ;  Kee- 
ble  V.  Cummins,  5  Hayw.  43. 

3  See  Wh.  on  Ev.  §§  812,  1254.  See 
also  Hirsch  v.  Trainer,  3  Abb.  (N.  Y.) 
N.  Gas.  274  ;  Faulder  v.  Silk,  3  Camp. 
126,  per  Lord  EUenborough.  See  other 
cases  cited  in  Wh.  on  Ev.  §  1254. 

*  Sargeson  v.  Sealey,  2  Atk.  412  ; 
Stone  V.  Damon,  12  Mass.  488  ;  Breed 

6 


V.  Pratt,  18  Pick.  115  ;  Crowninshield 
V.  Crowninshield,  2  Gray,  524  ;  Hart 
V.  Deamer,  6  Wend.  497  ;  Hicks  v. 
Marshall,  8  Hun,  327 ;  Goodell  v.  Har- 
rington, 3  Thomp.  &  C.  345  ;  Hutch- 
inson V.  Sandt,  4  Rawle,  234  ;  Bank  v. 
Moore,  78  Penn.  St.  407  ;  Kneedler's 
App.,  92  Penn.  St.  428. 

5  See,  as  sustaining  admissibility  of 
such  records.  Dexter  v.  Hall,  15  Wal- 
lace, 9  ;  Caulkins  v.  Fry,  35  Conn.  170  ; 
Burke  v.  Allen,  29  N.  H.  106  ;  L'Amo- 
reux  V,  Crosby,  2  Paige,  422  ;  Fitzhugh 
V.  Wilcox,  12  Barb.  235  ;  Wadsworth 
V.  Sherman,  14  Barb.  169  ;  Nichol  v. 
Thomas,  53  Ind.  53  ;  Elston  v.  Jasper, 
45  Tex.  409.  In  Lagay  v.  Marstou,  32 
La.  Ann.  170,  the  finding  of  a  com- 
mission that  the  person  was  notoriously 
insane  was  treated  as  affording  the  pre- 
sumption that  a  party  who  had  pre- 
viously contracted  with  her  must  have 
been  warned  of  her  condition. 

*  Shakespeare  v.  Markham,  72  N.  Y. 


CONTRACTS. 


[§7. 


where  the  lunacy,  to  the  knowledge  of  the  other  contract-   Better  opin- 
ing party,  extends  to  the  subject  matter  of  the  contract.^    contracts 
If  we  assume  that  in  the  case  of  lunatics  there  is  an   ^^  lunatics 

are  voida- 

absence  of  consenting  mind,  the  principle  involved  in  We  at  op- 
this  question  is  analogous  to  that  by  which  the  deed  of 
an  illiterate  person,  who  has  been  deceived  as  to  the  contents 
thereof,  is  held  void.^  Agreeably  to  this  principle  the  contracts 
of  a  lunatic,  made  under  the  circumstances  given  above,  have 
been  considered  to  be  void  in  several  recent  American  cases. ^  A 
more  satisfactory  conclusion,  however,  is  established  by  the  English 
cases  of  Molton  v.  Camroux^  and  Matthews  v.  Baxter.^  In  the  latter 
case  Kelley,  C.  B.,  said  :  "  It  has  been  argued  that  a  contract  made 
by  a  person  who  was  in  the  position  of  the  defendant,  is  absolutely 
void.  But  it  is  difficult  to  understand  this  contention.  For,  surely, 
the  defendant,  upon  coming  to  his  senses,  might  have  said  to  the 
plaintiff,  '  true,  I  was  drunk  when  I  made  this  contract,  but  still  I 
mean,  now  that  I  am  sober,  to  hold  you  to  it.'  And  if  the  defendant 
could  say  this,  there  must  be  a  reciprocal  right  in  the  other  party. "^ 


400 ;  Garro-w  v.  Brown,  1  Wins.  (N.  C.) 
No.  2,  Eq.  49  ;  Rutherford  v.  Ruff,  4 
Dessaus.  350  ;  Seely  v.  Price,  14  Mich. 
541  ;  Jacox  r.  Jacox,  40  Mich.  473  ; 
Taylor  v.  Patrick,  1  Bibb,  168  ;  Wil- 
son V.  Oldham,  12  B.  Mon.  55;  Bird- 
song  V.  Birdsong,  2  Head.  289  ;  Killian 
V.  Badgett,  27  Ark.  166  ;  Henderson  v. 
McGregor,  30  Wis.  78.  In  Moore  v. 
Hershey,  90  Penn.  St.  196,  Paxon,  J., 
held  that  the  indorsement  of  a  promis- 
sory note  by  a  lunatic  could  be  in- 
quired into,  and  fraud,  knowledge  of 
the  lunacy,  or  want  of  consideration 
set  up  as  a  defence.  See  Wirebach  v. 
Bank,  10  W.  N.  C.  (Pa.)  143  ;  infra,  §  8. 
'  Price  V.  Berrington,  7  Hare,  402  ; 
Shadwell,  V.  C,  Lincoln  v.  Buckmas- 
ter,  32  Vt.  652  ;  Henderson  v.  McGre- 
gor, 30  Wis.  78  ;  Lagay  v.  Marston, 
32  La.  Ann.  170.  Story  on  Contracts, 
§  83.  But  see  Curtis  v.  Brownell,  42 
Mich.  165,  171,  where  it  seems  to  be 
hinted  that  this  presumption  of  fraud 


may  be  overcome  by  conduct  of  the 
lunatic  indicating  a  restoration  to  rea- 
son. And  the  presumption  may  be 
rebutted,  and  equity  will  not  interfere 
except  on  equitable  principles.  Where 
the  lunatic  has  had  the  benefit  of  the 
contract,  it  will  be  upheld.  Canfield  v. 
Fairbank,  63  Barb.  461  ;  Jones  v.  Per- 
kins, 5  B.  Mon.  222. 

2  See  Pollock  on  Contracts,  Am.  ed. 
402,  406,  and  cases  cited. 

3  See  notes  to  §  G  ;  Enckmg  v.  Sim- 
mons, 28  Wis.  272  (1871).  Hines  v. 
Potts,  56  Miss.  346  (1879),  goes  further 
than  the  statement  in  the  text.  See 
Bank  v.  McCoy,  69  Penn.  St.  209  ;  Hope 
V.  Everhart,  70  Penn.  St.  231  (1871)  ; 
Marmon  v.  Marmon,  47  Iowa,  121.  See 
also  Wilson  v.  Oldham,  12  B.  Mon.  55  ; 
and  infra,  §  15,  for  cases  dealing  with 
intoxication  on  the  same  principle. 

*■  4  Exch.  17  ;  2  Exch.  486. 
s  L.  R.  8  Exch.  132. 
6  L.  R.  8  Exch.  133. 

7 


§  8.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

The  same  observations  may  be  made  as  to  persons  temporarily, 

though  not  obviously,  insane.     Sufficient  protection  to  persons  of 

this  class  is  afforded  by  holding  their  contracts  voidable  when  it  is 

shown  that  their  incapacity  was  known  or  practised  upon,  while  the 

transaction  of  business  is  assisted  by  the  opportunity  given  in  lucid 

intervals,  or  upon  recovery,  for  the  ratification  of  contracts  really 

conducive  to  the  interests  of  both  parties.     In  this  country  there  is 

a  growing  tendency  to  adopt  the  English  rule,  both  as  more  fair 

and  more  philosophical.^ 

§  8.  We  may  therefore  hold  it  to  be  settled  by  the  weight  of 

p,  authority,  that  a  contract  made  with  a  lunatic  in  good  faith 

executed  in    and  in  ignorance  of  his  incapacity  cannot,  after  the  pro- 
good  faith  .      .       ^  ."  ^  .  . 
will  besus-    perty  has  been  obtained  and  enjoyed  by  the  lunatic,  be 

^^^^  '  set  aside  or  defeated  by  the  latter  or  his  representatives, 

unless  the  parties  can  be  put  iJi  statu  quo.  Or,  to  adopt  the 
words  of  Pollock,  C.  B.  :^  "  Where  a  person,  apparently  of  sound 
mind,  and  not  known  to  be  otherwise,  enters  into  a  contract  for  the 
purchase  of  property,  which  is  fair  and  bond  fide,  and  which  is  exe- 
cuted and  completed,  and  the  property,  the  subject  matter  of  the 
contract,  has  been  paid  for  and  fully  enjoyed,  and  cannot  be  de- 
stroyed, so  as  to  put  the  parties  in  statu  quo,  such  contract  cannot 
afterwards  be  set  aside,  either  by  the  alleged  lunatic,  or  those  who 
represent  him." 

This  conclusion  is  sustained  in  America  by  numerous  adjudica- 
tions.^ 

'  Murray   v.    Carlin,     67    111.    286  ;  "n-hicli   numerous  cases    are  cited.     It 

Searle  v.  Galbraith,   73   111.  'ZHd  ;  Tit-  is  shown  by  abundant  authority  that 

comb  r.  Vantyle,   84  111.  371;  AlcCor-  contracts  by  lunatics  are  open  to  ratifi- 

mick  V.  Littler,  85  111.  62  ;  Willemin  r.  cation. 

Dunn,    93   III.    511.     In   other   cases,  ^  Molton  v.  Camroux,  2  Exch.  503. 

while  the  ruliugs  went  off  on  collateral  ^  Kendall    v.    May,    10    Allen,    59  ; 

points,    the   reasoning    of   the   judges  Young  u.  Stevens,  48  N.  H.  133  ;  Fitz- 

rested  on  the  principles  stated  in  the  hugh  v.  Wilcox,  12  Barb.  235  ;  Loomis 

text.     Matthieson  v.  McMahon,  38  N.  v.  Spencer,  2  Paige,  158  ;  Riggs  r.  The 

J.  L.  537  ;  Turner  v.  Rusk,  53  Md.  65  ;  Society,  19  Hun,  481 ;  Ins.  Co.  v.  Hunt, 

Freed  v.  Brown,  55  Ind.  310.     But  see  79  N.  Y.  541  ;  Beals  v.  See,  10  Penn. 

Evans  v.  Horan,  52  Md.  610.  St.  56;  Kneedler's  App.,  92  Penn.  St. 

In  Blakeley  v.   Blakeley,   33   N.   J.  428  ;  Yauger  v.  Skinner.  14  N.  J.  Eq. 

Eq.  502,  the  question  in  the  text  is  dis-  389  ;    Matthieson    v.  McMahon,  supra  ; 

cussed  with  much  ability,  and  a  learn-  Lozear   r.   Shields,   ubi  supra;   Wilder 

ed  note   by  the  reporter  is  given,   in  v.  Weakley,  34  Ind.  181  ;  Behrens   v. 

8 


CONTRACTS. 


[§9. 


§  9.  While,  however,  the  prevalent  opinion  now  is  that  an  ordi- 
nary business  contract  with  a  lunatic,  when  fair,  and  by 
a  party  having  no  notice  of  his  mental  disability,  will  be   to°wiiether 

sustained,  there  is  still  much  difference  of  opinion  as  to    ^^^^^  ^^^ 

^  voidable. 

whether  title  to  real  estate  can  be  passed  by  a  person  at 
the  time  a  lunatic,  no  matter  how  completely  his  lunacy  may  have 
been  disguised.  Some  of  the  earlier  authorities  recognize  the  dis- 
tinction taken  in  Thompson  v.  Leach^  between  a  deed  of  feoffment 
and  a  deed  of  bargain  and  sale,  holding  the  latter  absolutely 
void.^  The  supreme  court  of  the  United  States  has  accepted  this 
position. 3 

In  Massachusetts  it  has  been  held  that  while  a  deed  of  bargain 


McKinsie,  23  Iowa,  333  ;  Allen  v.  Ber- 
ryhill,  27  Iowa,  450  ;  Aslicraft  v.  De  Ar- 
mand,  44  Iowa,  229  ;  Sims  v.  McClure, 
8  Rich.  Eq.  286  ;  Rusk  v.  Fenton,  14 
Bush,  490 ;  Northington  ex  parte,  37Ala. 
496  ;  Beller  v.  Jones,  22  Ark,  92  ;  Henry 
V.  Fine,  23  Ark.  417  ;  Carr  7;.  Holliday,  5 
Ired.  Eq.  167  ;  Encking  v.  Simmons,  28 
Wis.  272 ;  Henderson  v.  McGregor,  30 
Wis.  78.  If  the  contract  be  executory  it 
will  not  be  upheld.  Story  on  Contracts, 
5th  ed.  §  83  ;  Skidmore  v.  Roniaine,  2 
Bradf.  (N.Y.)  122.  But  see  Beavan  v. 
McDonnell,  9  Exch.  309,  10  Exch,  184. 
In  a  late  case  (1881)  in  Pennsylvania, 
Judge  Trunkey,  in  holding  the  accom- 
modation indorsement  of  a  promissory 
note  by  a  lunatic  void,  laid  down  the 
general  principle  that  "  there  can  be  no 
binding  executory  agreement  where  one 
of  the  parties  is  bereft  of  reason."  Wire- 
bach  V.  Bank,  10  W.  N.  C.  145.  For 
other  English  cases  following  Molton  v. 
Camroux,  see  Price  v.  Berrington,  7 
Hare,  394  ;  Dane  v.  Kirkwall,  8  C.  & 
P.  679  ;  Beavan  v.  McDonnell,  10  Exch. 
184 ;  Hassard  v.  Smith,  6  Ir.  Eq.  429. 
'  Supra,  §  5.  By  statute  in  Eng- 
land the  feoffments  of  a  lunatic  are 
now  void.  See  1  Steph.  Com.  7th  ed. 
475.  See  also  Pollock  on  Contracts, 
Am.  ed.  p.  80,  406. 


2  It  was  thus  held  in  Pennsylvania. 
De  Silver's  Est.,  5  Rawle,  111  ;  Rogers 
V.  Walker,  6  Penn.  St.  371.  In  this  state 
deeds  of  bargain  and  sale  have,  by  stat- 
ute, the  same  effect  as  livery  of  seisin  ; 
but  the  late  cases  agree  with  Gibson  v. 
Soper,  6  Gray,  279,  in  holding  that  the 
lunatic  may  ratify  his  deed,  and  hence 
that  it  is  to  that  extent  only  voidable. 
But  "  when  there  is  no  evidence  of 
ratification  after  restoration  to  reason, 
it  is  impossible  upon  legal  principles 
that  the  estate  passed  to  the  grantee 
in  the  deed."  Semhle,  that  retention 
of  the  consideration  after  a  return  to 
sanity  would  be  such  evidence  ;  but  if 
the  deed  be  avoided  during  the  insanity 
the  consideration  need  not  be  returned. 
Per  Trunkey,  J.,  Crawford  v.  Scovel,  8 
W.  N.  C.  364  (1880). 

3  Dexter  v.  Hall,  15  Wallace,  9.  In 
this  case,  Mr.  Justice  Strong,  in  dealing 
with  the  power  of  attorney  of  a  lunatic, 
took  the  ground  that  by  common  law 
his  conveyances,  other  than  by  feoff- 
ment, are  absolutely  void  ;  a  fortiori 
his  power  of  attorney.  Other  cases 
holding  the  deed  of  a  lunatic  absolutely 
void  do  not  seem  to  notice  the  distinc- 
tion. Van  Deusen  v.  Sweet,  51  N.  Y. 
378 ;  Farley  v.  Parker,  6  Oreg.  105. 


9 


§11.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


and  sale  is  in  this  country  equivalent  to  a  feoflfment,  and  of  an  equal 
solemnity,  the  deeds  of  lunatics,  like  the  deeds  of  infants,  though 
voidable,  may  be  ratified.^  To  the  extent  of  holding  the  deed  of  a 
lunatic  not  under  guardianship  voidable  only,  this  is  sustained  by 
numerous  other  authorities,^  though  the  appointment  of  a  guardian 
may  avoid  subsequent  deeds. ^ 

§  10.  The  case  of  Gibson  v.  Soper*  pushed  the  doctrine  in  Massa- 
chusetts to  the  length  that,  on  suit  for  avoidance  brought, 
sion  parties   restitution  of  the  consideration  by  the  lunatic  is  unneces- 
to  be  placed   g^ry  as  a  condition  precedent,  unless  the  lunatic  be  re- 

m  statu  quo,  ''  ■*■  '         _ 

stored  to  reason,  and  seeks  inequitably  to  use  his  prior 
lunacy  as  an  engine  of  fraud. ^  But  the  better  opinion  is  that  the 
parties  must  be  placed  in  statu  quo,  unless  there  has  been  actual 
fraud  .^ 

§  11.  The  findings  of  a  commission  of  lunacy  are  not  regarded  as 

dissolving  a  partnership  contract  ipso  facto.  To  work 
contract        such  a  dissolution  the  decree  of  a  court  of  equity  must 

soived^iBso  ^®  ^^^^ '  ^"^^  ^^^^  ^^^^  ^^^  ^®  given  where  the  insanity 
facto  by  lu-   Jg  only  temporary.''     The  point  does  not  seem  ever  to 

nacy.  »'  i  ./  i 

have  been  decided  whether  a  partnership  contract  entered 
into  by  one  already  found  a  lunatic  would  be  valid  until  set  aside 


'  Allis  V.  Billings,  6  Mete.  415  ;  Ar- 
nold V.  Richmond  Iron  Works,  1  Gray, 
434;  Gibson  v.  Soper,  6  Gray,  279; 
Howe  )'.  Howe,  99  Mass.  88;  Valpey  ij. 
Rea  (S.  C.  Mass.  1881),  24  Albany  L. 
J.  137. 

*  Hovey  i'.  Hobson,  53  Me.  451 ;  Eaton 
V.  Eaton,  37  N.  J.  L.  108  ;  Key  v.  Davis, 
1  Md.  82 ;  Chew  v.  Bank,  14  Md.  299  ; 
Evans  w.  Horan,  52  Md.  602  ;  Rusk  v. 
Fenton,  14  Bush.  490  ;  Ashcraft  v.  De 
Armand,  44  Iowa,  229 ;  Nichol  v. 
Thomas,  53  Ind.  42 ;  Freed  v.  Brown, 
55  Ind.  310  ;  Elston  v.  Jasper,  45  Tex. 
409  ;  Scanlan  v.  Cobb,  85  111.  296.  The 
action  may  be  brought  by  the  lunatic 
or  by  his  guardian ;  cases  supra,  and 
see  Crawford  v.  Scovel,  supra.  Contra, 
Nichol  V.  Thomas,  supra.  The  luna- 
tic cannot  file  a  bill  in  equity,  till  he 

10 


is  restored  to  mind.  Turner  v.  Rusk, 
53  Md.  65,     See  infra,  §  14, 

3  Hovey  w.  Hobson,  Nichol  i?.  Thomas, 
Freed  v.  Brown,  Elston  v.  Jasper,  su- 
pra;  see  Eaton  v.  Eaton,  Rusk  v.  Fen- 
ton, supra, 

*  6  Gray,  279. 

^  Per  Thomas,  J.  See,  to  same  effect, 
Crawford  v.  Scovel,  8  W.  N.  C.  (Pa.) 
364 ;  Hovey  v.  Hobson,  Nichol  v. 
Thomas,  supra.  Cf.  Lagay  v.  Marston, 
32  La.  Ann.  170. 

5  Eaton  V.  Eaton,  Evans  v.  Horan, 
Scanlan  v.  Cobb,  Ashcraft  v.  De  Ar- 
mand, Rusk  V.  Fenton,  supra. 

^  Lindley,  4th  ed.  1,  *226  ;  CoUyer, 
6th  ed.  Am.  notes,  1, 152  n.  See  contra, 
Story,  §  295.  That  an  inquest  dissolves 
a  partnership,  see  Isler  v.  Baker,  6 
Humph.  85. 


CONTRACTS. 


[§16. 


by  the  lunatic  or  his  representatives  ;  but  where  entered  into  bona 
fide  on  the  part  of  the  other  party  it  might  be  argued  that  the  rights 
of  third  parties  require  it  to  be  held  binding  until  dissolved. 

§  12.  Where   the   contract  of  an  alleged  lunatic  is    Adminis- 

•111-  1  -Till-  1     •    •        trators  may 

voidable,  it  may  be  avoided  by  his  executors  or  admmis-    avoid  con- 

,      ,  V      u  •     u    •       1  tract  of  in- 

trator,  or  by  his  heirs.^  ,ane  dece- 

§  13.  So  the  guardian,  committee,  curator,  or  assignee  •^'^°*- 

in  lunacy,  whatever  may  be  his  official  title,  may  contest  representa- 

before  the  proper  court  his  ward's  prior  dealings,  and  tives  and 

^  ,    ^  ,  ^      ^  .  guardians. 

may  either  disavow  and  rescind  or  ratify  the  lunatic's 

contracts  made  during  lunacy  .^ 

§  14.  Notwithstanding  the  position  taken  in  the  older  books  that 

no  man  can  stultify  himself  by  alleging  his  lunacy  at  a 

.,..       "^  11,,  1        ^      ■      •      And  SO  Of  a 

.prior  period,  it  is  now  settled,  as  has  been  already  inci-   party  him- 

dentally  seen,  that  a  person  who  has  been  insane,  and 

when  insane  makes  a  contract,  can,  on  his  restoration  to  sound  mind, 

contest  the  validity  of  the  contract.^ 

§  15.  A  lunatic  is  liable  for  his  torts  so  far  as  to  subject  his 

estate  to  a  suit  for  damages  worked  to  others  by  its  neg- 

.      .  JO      Lunatic 

ligent  management.     On  principle,  however,  he  cannot   liable  for 
be  held  liable  for  malicious  acts  in  cases  where  he  is  not 
capax  doU.* 

11.    INTOXICATION. 

§  16.  A  drunkard,  voluntarius  dcemon,  is  not  entitled  to  the 
same  consideration  as    persons  rendered  incapable  by  the  visitation 


*  Beverley's  case,  4  Rep.  123  b.  See 
Gibson  v.  Soper,  6  Gray,  279. 

2  2  Bl.  Com.  292.  McCrillis  v.  Bart- 
lett,  8  N.  H.  569  ;  Gibson  v.  Soper,  supra. 
In  Baker  v.  Baker,  L.  R.  5  P.  D..  145, 
it  was  held  that  the  committee  of  the 
estate  of  a  lunatic,  as  against  the  com- 
mittee of  the  person,  was  the  proper 
party  to  bring  a  proceeding  for  divorce 
on  account  of  the  adultery  of  the  luna- 
tic's wife. 

^  Gibson  v.  Soper,  ubi  supra  ;  Craw- 
ford V.  Scovel,  8  W.  N.  C.  (Pa.)  364 ; 
Turner  v.  Rusk,  53  Md.  65  ;  the  same 


principle  applying  as  in  the  case  of 
infants.  But  where  the  party  is  un- 
der guardianship,  the  action  must  be 
brought  by  the  guardian.  Nichol  v. 
Thomas,  53  Ind.  42.  It  would  seem 
to  be  impossible  that  the  action  should 
be  allowed  to  be  brought  by  the  other 
party.  Allen  v.  Berryhill,  27  Iowa, 
540. 

*  See  the  cases  collected  in  Ewell's 
Leading  Cases,  pp.  635,  638,  642,  n.  ; 
Wh.  Neg.  §§  87,  88,  306,  307.  As  to 
responsibility  for  malicious  acts,  see 
Wh.  Cr.  L.,  8th  ed.  §  82  et  seq. 
11 


§16.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


of  God.  A  lunatic  is  "  incapable  of  committing  a  crime  or  making 
Intoxica-       ^  Contract,  yet  it  is  common  to  speak  of  his  torts  and  his 

tioQ,  unless  contracts,  and  on  many  of  them  he  is  liable  in  a  civil  ac- 

excessive,         .,,,..„, 

no  ground     tion ;  ^  it  IS  lor  the  protection  of  others  who  do  not  know 

ing  con- '  of  his  incapacity  that  his  contracts  Avhen  fair  are  up- 
tract.  held,  and  his  misdeeds,  when  injurious,  are  compensated 

for.  But  drunkenness,  so  far  from  being  a  defence  to  the  merits 
in  actions  for  torts,  may  be  an  aggravation,^  and  in  actions  ex  con- 
tractu, the  validity  of  the  transaction  depends  upon  its  fairness. 
A  party  taking  advantage  of  another's  incapacity  from  drunkenness 
will  not  be  allowed  the  aid  of  the  law  to  enforce  an  unfair  bargain 
thus  obtained.  But  in  cases  where  one  of  the  parties  to  a  contract 
was,  at  the  time  it  was  made,  intoxicated,  to  an  extent  not  depriving 
him  of  business  capacity,  he  cannot,  after  having  received  the  benefit 
of  the  contract,  supposing  it  to  be  fair  and  reasonable,  be  allowed 
to  rescind  it ;  and  in  any  view  executory  contracts  by  persons 
excited  by  drink  should  be  considered  only  voidable,  open  to  rati- 
fication when  the  party  is  sober. ^ 


1  Trunkey,  J.,  in  Wirebach.  v.  Bank, 
10  W.  N.  C.  (Pa.)  on  p.  144.  See  also 
the  remarks  of  Drake,  J.,  in  Burroughs 
V.  Richman,  13  N.  J.  L.  233. 

2  Wh.  on  Neg.  §  306. 

8  In  Gore  v.  Gibson,  13  M.  &  W.  623, 
a  case  which  has  been  cited  with  ap- 
probation in  many  American  decisions, 
it  was  held  that  the  contract  of  a  man 
too  drunk  to  know  what  he  was  about, 
is  absolutely  void,  confirming  Lord  El- 
lenborough's  ruling  in  Pitt  v.  Smith, 
3  Camp.  33.  But  the  later  case  of 
Matthews  v.  Baxter,  L.  R.  8  Ex.  132, 
has  modified  this,  and  decides,  in  ac- 
cordance with  the  principles  stated  in 
the  text,  that  such  a  contract,  even 
though  executory,  is  voidable  only.  In 
this  country  the  earlier  authorities  fall 
in  the  line  of  Pitt  v.  Smith,  and  hold 
the  contracts  of  drunkards  void.  Caul- 
kins  V.  Fry,  35  Conn.  170 ;  Jenriers  v. 
Howard,  6  Blackf.  240  ;  Drummond  v. 
Hopper,  4  Harring.  327  ;  Wade  v.  Col- 
vert,  2  Mill's  Const.  N.  S.  27  ;    Fitz- 

12 


gerald  v.  Reed,  17  Miss.  94;  Newell  v. 
Fisher,  19  Miss.  431.  As  to  statutory 
rule  in  New  Hampshire,  see  McCrillis 
V.  Bartlett,  8  N.  H.  569.  As  to  Ver- 
mont, see  Barret  v.  Buxton,  2  Aiken, 
167;  Foote  v.  Tewksbury,  2  Vt.  97. 
And  so  if  fraud  is  practised  (but  whe- 
ther the  contract  would  stand  if  not 
procured  by  fraud,  not  decided).  King 
V.  Bryant,  2  Hayw.  591.  That  a  prom- 
issory note  given  by  one  when  drunk 
is  void  against  the  payee,  see  Bank  v. 
McCoy,  69  Penn.  St.  204,  where  the 
evidence  was  that  the  maker  of  the 
note  was  at  the  time  "wholly  uncon- 
scious of  what  he  was  doing."  It  was 
held,  however,  that  in  the  hands  of  a 
bona  fide  indorser  for  value,  the  note  is 
good.  In  Connecticut  it  was  intimated 
in  1868,  on  the  authority  of  1  Parsons 
on  Bills  and  Notes,  171,  that  if  the  in- 
capacity was  complete,  it  would  be  as 
valid  a  defence  against  the  indorsee  as 
the  payee ;  Caulkins  v.  Fry,  35  Conn. 
170.     A  better  rule  is  furnished  by  the 


CONTRACTS. 


[§16«. 


§  16  a.  The  inference  of  fraud  is  strong  when  one  contracting 
party  knows  of  the  other's  disability,  and  when  the  bar- 

^       *'  f.  .  1  1         *  Otherwise 

gain  is  on  its  face  unfair  and  unequal.  Attempts  at  when  acted 
fraudulent  dealing  are,  under  such  circumstances,  indica-  °°  ^ 
tions  from  which  the  jury  may  judge  as  to  the  probability  of  the 
party's  being  deceived.  Where  advantage  has  been  taken,  the  con- 
tracts will  always  be  avoided,  and  upon  slight  evidence,  especially 
when  the  drunkenness  has  been  contrived  by  the  other  party.^ 
But  they  cannot  be  deemed  absolutely  void,  as  they  may  be  ratified. 


case  of  Miller  v.  Finley,  26  Mich.  249 
(at  p.  254),  where  a  note  made  by  a 
man  when  drunk  was  held  good  in  the 
hands  of  the  indorsee,  but  only  void- 
able as  against  the  payee.  In  unison 
with  this  case  are  some  old,  and  most  of 
the  late  cases,  which  hold  the  contracts 
of  a  drunkard  only  voidable.  Walker 
V.  Davis,  1  Gray,  506,  at  p.  508  ; — in 
Foss  V.  Hildreth,  10  Allen,  76,  at  p. 
79,  the  word  void  is  used,  it  is  true, 
but  taken  in  connection  with  the  facts, 
it  will  be  seen  to  refer  only  to  the  par- 
ticular case  ; — Burrouglis  v.  Richman, 
13  N.  J.  L.  233  ;  Reinicker  v.  Smith,  2 
Harr.  &  John.  421,  423;  Johns  v. 
Fritchey,  39  Md.  258  ;  Wigglesworth  v. 
Steers,  1  Hen.  &  Munf.  70;  Mansfield 
V.  Watson,  2  Iowa,  111 ;  Reynolds  v. 
Dechaums,  24  Tex.  174;  Cumings  v. 
Henry,  10  Ind.  109  ;  Joest  v.  Williams, 
42  Ind.  565  ;  Broadwater  v.  Darne,  10 
Mo.  277  ;  Eaton  v.  Perry,  29  Mo.  96  ; 
Darby  v.  Cabanne,  1  Mo.  App.  126  ; 
Cavender  v.  Waddingham,  5  Mo.  App. 
457  ;  Bates  v.  Bates,  72  111.  108 ;  Wil- 
liams V.  Inabnet,  1  Bailey,  343  ;  Phe- 
lan  V.  Gardiner,  43  Cal.  306.  In  Joest 
V,  Williams,  iit  supra,  a  contract  of  sale 
had  been  executed,  and  was  on  its  face 
reasonable,  but  the  intoxicated  party 
was  allowed  to  refund  the  considera- 
tion and  rescind  the  contract.  The 
cases  agree  that  the  mere  fact  of  intoxi- 


cation is  not  prima  facie  proof  of  incom- 
petency ;  it  must  be  a  degree  of  drunk- 
enness producing  entire  incapacity. 
See,  among  other  cases,  Johns  v. 
Fritchey,  Cavender  v.  Waddingham, 
Bates  V.  Bates,  ut  supra,  and  Pickett  v. 
Sutter,  5  Cal.  412.  It  is  for  the  jury  to 
determine  whether  the  party's  intoxi- 
cation was  such  as  to  render  him  either 
incapable  of  contracting  or  to  expose 
him  an  easy  victim  to  fraud. 

'  That  a  promise  unfairly  obtained 
from  a  drunken  promiser  will  not  be 
enforced,  see  Pitt  v.  Smith,  3  Camp. 
33;  Cory  v.  Cory,  1  Ves.  Sen.  19; 
Say  V.  Barwick,  1  Ves.  &  B.  196  ;  Gore 
V.  Gibson,  3  M.  &  W.  623  ;  Cooke  v. 
Clayworth,  8  Ves.  12;  Bliss  v.  R.  R., 
24  Vt.  424 ;  Mitchell  v.  Kingmans,  5 
Pick.  431 ;  Rice  v.  Peck,  15  Johns.  503  ; 
Wager  v.  Reid,  3  T.  &  C.  (N,  Y.)  332 ; 
Hutchinson  v.  Tindall,  3  N.  J.  Eq.  357  ; 
Campbell  v.  Spencer,  2  Binn.  133  ;  Wil- 
son V.  Bigger,  7  Watts  &  S.  Ill  ;  Du- 
laney  v.  Green,  4  Barring.  (Del.)  285  ; 
Johns  V.  Fritchey,  39  Md.  258 ;  Men- 
kins  V.  Lightner,  18  111.  282;  Scanlan 
V.  Cobb,  85  111.  296  ;  Mansfield  v.  Wat- 
son, 2  Iowa,  111  ;  Jones  v.  Perkins,  5 
B.  Mon,  222;  Richardson  v.  Strong, 
13  Ired.  L.  106  ;  Morrison  v.  McLeod, 
2  Dev.  &  B.  226.  See  also  other  cases 
in  the  preceding  and  succeeding  para- 
graphs. 

13 


§17.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


Rule  in 
equity. 


§  16  h.  Courts  of  equity  Avill  relieve  against  contracts  entered  into 
in  a  state  of  intoxication:  (1)  where  the  intoxication  pro- 
duced mental  incapacity;  and  (2)  where  it  produced  men- 
tal excitement,  subjecting  the  party  to  the  undue  influ- 
ence of  the  other  contracting  party,  who  thereby  gains  an  unfair 
advantage.^ 

§  16  c?.  A  drunkard,  like  a  lunatic,  will  be  held  liable  for  neces- 
saries requisite  for  his  support,^  though  in  such  cases  the 
liable  for       suit  should  be  for  goods  sold  and  delivered,  and  not  on 

necessaries.  i.     j.   i.   j  i 

account  stated.^ 


III.    MARRIAGE    CONTRACTS. 

§  17.  A  person  incapable  of  solemnizing  other  contracts  is  inca- 
pable of  solemnizing  the  contract  of  matrimony.^     The 
Distinctive      ^         .  i       i  i  •        ,  n  t  i 

rule  as  to      marriage  oi  an  absolute  lunatic,  therefore,  may  be  sub- 
sequently annulled.*     On  the  other  hand,  such  a  mar- 


marriage. 


1  Wigglesworth  i'.  Steers,  1  Hen.  & 
Munf.  70  ;  Birdsong  v.  Birdsong,  2  Head, 
289  ;  Belcher  r.  Belclier,  10  Yerg.  121 ; 
Frenclir.  French,  8  Ohio,  214;  Mansfield 
V.  Watson,  2  Iowa,  111,  at  p.  115.  But 
that  equity  will  only  relieve  where 
fraud  has  been  practised,  and  not  other- 
wise, see  Hutchinson  v.  Brown,  IClarke, 
408 ;  Prentice  v.  Achorn,  2  Paige,  30 ; 
Wager  v.  Reid,  3  T.  &  C.  (N.  Y.)  332 ; 
Seymour  v.  Delancy,  3  Cowen,  445  ; 
Pittenger  v.  Pittenger,  3  N.  J.  Eq.  156; 
Hutchinson  v.  Tindall,  3  N.  J.  Eq.  357 ; 
Jones  V.  Perkins,  5  B.  Mon.  222 ;  Scan- 
Ian  V.  Cobb,  85  111.  296,  at  p.  298 ; 
White  V.  Cox,  4  Hayw.  (Tenn.)  213; 
Campbell  v.  Ketcham,  I  Bibb,  406 ; 
Rutherford  v.  Ruff,  4  Cessans.  350 ; 
Johnson  v.  Medlicott,  3  P.  Wms.  130  ; 
Shaw  V.  Thackray,  3  Sm.  &  G.  537. 

2  Cooke  V.  Clayworth,  18  Ves.  Jr.  15  ; 
Gore  u.  Gibson,  13  M.  &  W.  623  ;  Saw- 
yer V.  Lufkin,  56  Me,  309  ;  McCrillis  v. 
Bartlett,  8  N.  H.  569  ;  Kendall  v.  May, 
10  Allen,  59  ;  Seymour  v.  Delancy,  3 
Cowen,  445  ;  Van  Horn  v.  Hann,  39  N. 
J.  L.  207  ;  Jenners  v.  Howard,  6  Blackf. 
240 ;  Darby  v.  Cabanne,  1  Mo.  App.  126  ; 

11 


so  in  equity,  Jones  v,  Perkins,  5  B.  Mon. 
222.  As  necessaries  may  be  consid- 
ered expense  of  suits  undertaken  for 
the  protection  of  the  drunkard  or  of  his 
estate.  Meares  in  re,  L.  R.  10  Ch.  D. 
552  ;  Hallet  v.  Oakes,  I  Cush.  296. 

3  Atkinson  v.  Medford,  46  Me.  510 ; 
Banker  v.  Banker,  63  N.  Y.  409  ;  Cole 
V.  Cole,  5  Sneed  (Tenn.),  57  ;  Ward  v. 
Dulaney,  23  Miss.  410 ;  Browning  v. 
Reane,  2  Phill.  169  ;  but  it  is  said  in 
Hancock  v.  Peaty,  L.  R.  1  P.  &  D.  335, 
that  "the  question  for  the  court  is, 
whether  the  mind  of  the  contracting 
party  is  diseased  or  not  at  the  time  of 
the  contract,  and  if  the  evidence  estab- 
lishes that  the  mind  was,  at  the  time 
of  entering  the  contract,  diseased,  the 
court  will  not  enter  into  the  extent  of 
the  derangement."  Per  Lord  Penzance 

<  Bishop,  Mar.  &  Div.  6th  ed.  §  135 
Turner  v.  Meyers,  1  Hagg.  Con.  414 
Middleborough  v.  Rochester,  12  Mass 
363  ;  Wightman  v.  Wightman,  4  Johns 
Ch.  343  ;  Ward  v.  Dulaney,  23  Miss 
410  ;  Crump  v.  Morgan,  3  Ired.  Eq.  91 
Foster  v.  Means,  1  Speers'  Eq.  569 ; 
Rawdon  v.  Rawdou,  28  Ala.  565.     So 


CONTRACTS. 


[§17. 


riage  may  be  ratified  by  the  party  when  restored  to  capacity.' 
Although,  to  justify  a  decree  of  nullity,  there  must  be  an  undoubted 
unsoundness  at  the  time  of  marriage,^  yet  in  marriage,  as  in  other 
contracts,  fraud  or  coercion,  when  brought  to  bear  on  a  person  of 
weak  mind,  will  work  an  avoidance  which,  without  such  fraud  or 
compulsion,  would  not  have  been  decreed.^ 


intoxication,  Clement  v.  Mattison,  3 
Rich.  93.  In  New  York,  under  the  Re- 
vised Statutes,  a  marriage  by  a  lunatic 
is  only  voidable.  Stuckey  v,  Mathes, 
24  Hun,  461. 

'  Cohabitation  is  strong  evidence  of 
such  ratification.  See  Bishop,  Mar.  & 
•Div.  ut  supra.  Cole  v.  Cole,  5  Sneed, 
57.  In  Rawdon  v.  Rawdon,  supra,  it 
was  held  that  the  right  to  a  decree  of 
nullity  would  be  barred  by  the  lapse 
of  time — in  this  case  twenty-two  years 
had  elapsed.  And  in  Wiser  v.  Lock- 
wood,  42  Vt.  720,  it  was  held  that  the 
marriage  could  not  be  impeached  after 
the  death  of  the  lunatic.  In  Hancock 
V.  Peaty,  L.  R.  1  P.  &  D.  335,  it  was  al- 
leged that  the  lunatic  had  recovered ; 
in  which  case  Lord  Penzance  said  he 
would  annul  the  marriage  at  her  re- 
quest only.  Contra,  that  there  can  be 
no  confirmation.  Crump  v.  Morgan,  3 
Ired.  Eq.  91;  Ward  v.  Dulaney,  23 
Miss.  410. 

2  Banker  v.  Banker,  63  N.  Y.  409. 

^  The  leading  case  on  this  point  is 
that  of  Lord  Portsmouth,  1  Hagg. 
Ecc.  355.  See  also  Browning  v.  Reane, 
2  Phill.  69.  Lord  Portsmouth's  case 
was,  shortly  stated,  as  follows :  Lord 
Portsmouth  was  married  for  the  second 
time  in  March,  1813,  to  a  young  woman 
who  was  the  daughter  of  one  of  his 
trustees,  the  solicitor  of  the  family, 
under  whose  charge  he  was  at  the  time 
living.  From  earliest  childhood  he  had 
displayed  great  weakness,  both  moral 
and  mental,  being  cruel,  timid,  and 
fickle  in  his  management  of  his  house- 


hold, and  exceedingly  capricious  in  his 
tastes.  Upon  his  arrival  at  twenty- 
one,  however,  his  incapacity  was  such 
as  to  induce  his  family  to  take  steps  to 
put  him  under  the  charge  of  a  commit- 
tee, and  at  their  instance  he  joined 
with  his  father  in  suffering  common 
recoveries,  and  making  a  new  settle- 
ment of  the  estate.  It  was  not  dis- 
puted that  he  mixed  in  society  gener- 
ally, corresponded  with  his  friends, 
and  settled  his  own  accounts  with  his 
steward.  His  first  marriage  was  in 
1799,  and  took  place  imder  a  family 
arrangement,  with  a  lady  several  years 
older  than  himself,  who  it  was  under- 
stood took  a  general  supervision  of  his 
affairs.  In  the  settlement  made  at  that 
marriage,  the  father  of  his  second  wife 
was  one  of  the  trustees.  The  first  wife 
died  in  November,  1813,  and  in  Febru- 
ary, 1814,  Lord  Portsmouth  went  down 
to  London  with  his  medical  attendant, 
and  being  left  in  his  trustee's  hands,  a 
week  afterwards  contracted  a  second 
marriage  to  the  trustee's  daughter.  In 
1823,  not  until  after  the  birth  of  a 
child,  which  took  place  in  1822,  a  com- 
mission was  issued  to  inquire  into  his 
lunacy,  the  result  of  which,  after  a 
long  contest,  was  a  finding  that  he  was 
of  unsound  mind,  and  had  been  so 
since  January,  1809.  The  committee 
appointed  under  this  procedure  imme- 
diately filed  a  petition  in  the  ecclesias- 
tical court  to  annul  the  second  mar- 
riage. Sir  John  Nicholl,  in  deciding 
the  case,  said:  "That  considerable 
weakness   of  mind,    circumvented   by 

15 


§  18.] 


MENTAL  UNSOUXDXESS  IX  ITS  LEGAL  RELATIONS. 


Rule  as  to 
divorce. 


§  18.  It  has  been  argued  that,  as  an  insane  person  can- 
not consent  to  adultery,  a  decree  of  divorce  on  ground 


proportionate  fraud,  ■will  vitiate  tlie 
fact  of  marriage,  whether  the  fraud  is 
practised  on  his  ward  by  a  party  ■who 
stands  in  the  relation  of  a  guardian,  as 
in  the  case  of  Harford  against  Jlorris  (2 
Hag.  Cons.  R.  423),  ■n-hich  ■was  decided 
principally  on  the  ground  of  fraud  ;  or 
■whether  it  is  effected  by  a  trustee,  pro- 
curing the  solemnization  of  the  mar- 
riage of  his  own  daughter  with  a  per- 
son of  very  weak  mind,  over  whom  he 
has  acquired  great  ascendency.  A  per- 
son incapable  from  weakness  of  detect- 
ing the  fraud,  and  of  resisting  the  as- 
cendency practised  in  obtaining  his 
consent  to  the  contract,  can  hardly  be 
considered  as  binding  himself  in  point 
of  law  by  such  an  act.  At  all  events, 
the  circumstances  preceding  and  at- 
tending the  marriage  itself  may  mate- 
rially tend  to  show  that  the  contracting 
party  was  of  unsound  mind,  and  was 
so  considered  and  treated  by  the  par- 
ties engaged  in  fraudulently  effecting 
the  marriage.  In  respect  to  Lord  Ports- 
mouth's unsoundness  of  mind,  the  case 
set  up  is  of  a  mixed  nature,  not  abso- 
lute idiocy,  but  weakness  of  under- 
standing ;  not  continued  insanity,  but 
delusions  and  irrationality  on  particu- 
lar subjects.  Absolute  idiocy,  or  con- 
stant insanity,  would  have  carried  with 
them  their  own  security  ;  for  in  either 
case,  the  forms  preceding,  and  the 
ceremony  itself,  could  not  have  been 
gone  through  without  exposure  and 
detection  ;  but  here  a  mixture  of  both, 
by  no  means  uncommon,  is  set  up — 
considerable  natural  ■weakness,  grow- 
ing at  length,  from  being  left  to  itself 
and  tincontrolled,  into  practices  so  ir- 
rational and  unnatural  as  in  some  in- 
stances to  be  bordering  on  idiocy,  and 
in  others  to  be  attended  with  actual 
delusion — a  perversion  of  mind — a  de- 

16 


ranged  imagination — a  fancy  and  belief 
of  the  existence  of  things  which  no  ra- 
tional being,  no  person  possessed  of  his 
powers  of  reason  and  judgment,  could 
possibly  believe  to  exist.  ...  It 
appeared  that  February,  1814,  Lord 
Portsmouth  was  brought  to  London  by 
his  medical  attendant,  and  delivered 
up  to  his  trustees,  Hanson  being  one, 
and  then  in  town — that  day  week  he 
was  married  to  the  daughter  of  Mr. 
Hanson.  The  coniidential  solicitor  of 
the  family,  one  of  the  trustees,  who 
had  a  great  ascendency  over  him,  who 
owed  him  every  possible  protection, 
married  him  to  one  of  his  daughters  I 
It  is  unnecessary  to  state  the  jealousy 
with  which  the  law  looks  at  all  trans- 
actions between  parties  standing  in 
these  relations  to  each  other.  The 
whole  transaction  will  bear  but  one 
interpretation :  every  part  of  it  is  the 
act  of  the  Hansons  !  Lord  Portsmouth 
is  a  mere  instrument  in  their  hands, 
to  go  through  with  the  necessary  forms  ; 
the  settlement  is  begun  in  forty-eight 
hours  after  Lord  Portsmouth's  arrival 
in  London  !  The  contents  of  that  set- 
tlement ;  the  mode  in  which  it  was 
prepared ;  the  concealment  of  the  whole 
from  the  friends  and  the  other  trustees 
who  were  in  town,  some  in  the  same 
house  with  Lord  Portsmouth  :  all  these 
particulars  bear  the  same  character. 
The  necessary  forms  are  gone  through 
with,  but  in  support  of  these  mere 
forms,  not  a  witness  is  produced  to 
show  that  this  nobleman  was  conduct- 
ing himself  as  a  man  understanding 
what  he  was  doing,  or  capable  of  judg- 
ing, or  acting  as  a  free  and  intelligent 
agent ;  nothing  tending  to  show  he  was 
a  person  of  sound  mind  ;  nothing  in  his 
conduct  inconsistent  with  unsoundness 
of  mind  :  every  circumstance  conspires 


CONTRACTS. 


[§  18. 


of  adultery  cannot  be  granted  against  an  insane  person.^  To  this 
it  may  be  replied  that  divorce  statutes  are  meant  to  relieve  parties 
from  intolerable  wrong,  and  the  wrong  of  adultery  is  none  the  less 
intolerable  because  the  party  committing  it  was  insane. ^  This  view 
was  intimated  in  England  in  the  Mordaunt  case,  although  that  case 
was  decided  upon  the  peculiar  construction  of  a  statute. ^  The  in- 
sanity of  either  party  is  now  held  no  bar  to  a  divorce  in  England  ;* 
but  in  this  country  it  has  been  held  that  a  divorce  will  not  be  de- 
creed in  favor  of  an  insane  plaintiff.^ 


to  prove  that  he  was  the  mere  puppet 
of  the  Hanson  family,  and  that  the 
celebration  of  this  marriage  was  brought 
about  by  a  conspiracy  among  them  to 
circumvent  Lord  Portsmouth,  over 
whom  they,  and  particularly  the  father, 
had  a  complete  ascendency,  so  as  to 
destroy  all  free  agency  and  rational 
consent  on  his  part  to  this  marriage. 
A  marriage  so  had  wants  the  essential 
ingredient  to  make  the  contract  valid 
— the  consent  of  a  free  and  rational 
agent.  The  marriage  itself,  and  the 
circumstances  immediately  connected 
with  it,  do  not  tend  to  establish  restored 
sanity  ;  it  was  neither  '  a  rational  act' 
nor  was  it  '  rationally  done' — the  whole 
'  sounds  to  folly'  and  negatives  sanity 
of  mind.  The  Hansons,  in  the  mode 
of  planning  and  conducting  the  trans- 
action, show  that  they  treated  and  con- 
sidered Lord  Portsmouth  as  a  person  of 
unsound  mind,  and  Lord  Portsmouth, 
in  submitting  and  acquiescing,  and  not 
resisting,  confirms  his  own  incompe- 
tency. Even  if  no  actual  unsoundness 
of  mind,  strictly  so  called — if  no  insane 
derangement — existed,  if  only  weak- 
ness of  mind  (and  all  admit  that  he 
VOL.  I. — 2 


was  weak),  yet,  considering  the  pas- 
siveness  and  timidity  of  his  character 
on  the  one  hand,  the  influence  and  re- 
lation of  Hanson,  his  trustee,  on  the 
other,  and  the  clandestinity  and  other 
marks  of  fraud  which  accompanied  the 
whole  transaction,  I  am  by  no  means 
prepared  to  say,  that,  without  actual 
derangement  in  the  strict  sense,  the 
marriage  would  not  be  invalid  ;  but  in 
my  judgment  Lord  Portsmouth  was  of 
unsound  mind,  as  well  as  circumvented 
by  fraud." 

'  Nichols  V.  Nichols,  31  Vt.  328 ; 
Wray  v.  Wray,  19  Ala.  522 ;  Rathbun 
V.  Rathban,  40  How.  Pr.  328.  But  the 
suit  may  be  brought  against  them  while 
insane  for  adultery  committed  when 
sane.     lb. 

2  Matchin  v.  Matchin,  6  Penn.  St. 
332. 

3  Stat.  20  &  21  Vict.  c.  85,  §  27.  See 
the  cases,  Mordaunt  v.  Mordaunt,  L. 
R.  2  P.  109,  382. 

4  Baker  v.  Baker,  L.  R.  5  P.  D.  145, 
affirmed  6  P.  D.  12  ;  Mordaunt  v.  Mon- 
crieffe,  2  H.  L.  375. 

5  Worthy  u. Worthy,  36  Ga.  45  ;  Brad- 
ford V.  Abend,  89  111.  78. 

17 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


CHAPTER  II. 


WILLS. 


I.  Capacity. 

Disposing  mind  is  a  mind  capable  of 
independent  comprehension,. §  19. 

Idiots  unable  to  make  a  will,  §  20. 

If  intelligence  be  sbown,  bypotliesis  of 
idiocy  falls,  §  21. 

Different  theories  as  to  necessary  quali- 
fications, §  22. 

Theory  that  a  low  grade  of  intelligence 
is  siifficient,  Stewart  v.  Lispenard,  § 
23. 

Theories  calling  for  business  capacity,' 
§24. 

Theory  that  disposing  memory  is  ne- 
cessary, §  25. 

English  rulings  that  such  qualifications 
involve  a  higher  degree  of  capacity, 
§26. 

Party  must  have  capacity  to  resist 
fraud  or  force,  §  27. 

Mere  mental  weakness  does  not  inca- 
pacitate, §  28. 

Nor  does  eccentricity,  §  29. 

Conflict  as  to  the  burden  of  proof,  §  30. 

Non-experts  as  .well  as  experts  may 
give  opinion,  §  31. 

Experts  may  be  asked  as  to  hypothetical 
case,  §  32. 

Speculative  opinions  of  experts  entitled 
to  little  weight,  §  33. 

II.  Delusions. 
Delusions  to  be  proved  by  insanity,  not 

insanity  by  delusions,  §  34. 
Will  void  when  the  result  of  insane  de- 
lusion, §  35. 
But  single  delusion  not  general  insan- 
ity, §  36. 

18 


Nor  does  "moral  insanity"  incapaci- 
tate, §  37. 

Eccentricities  are  not  delusions,  §  38. 

Unless  the  result  of  insanity,  §  40. 

Rule  in  England  formerly  that  delusion 
must  affect  factum  of  will  to  incapaci- 
tate, §  41. 

This  view  only  partially  approved  by 
Lord  Lyndhurst,  §  42. 

And  dissented  from  by  Lord  Brougham, 
Waring  v.   Waring,  §  43. 

His  views  pushed  to  the  extreme,  §  44. 

Followed  by  Lord  Penzance,  Smith  v. 
Tehhitt,  §  45. 

But  repudiated  by  Queen's  Bench, 
Eanks  v.  Goodfellow,  §  46. 

Conflict  in  these  decisions ;  Lord  Brough- 
am's theory,  §  47. 

Contra,  Lord  Cockburn's  compartment 
theory,  §  48. 

Objection  to  this  view,  §  49. 

Theories  reconciled  by  supposition  of 
mental  twilight,  §  50. 

The  mind  is  indivisible,  §  51. 

Yet  delusions  need  not  destroy  capacity 
in  toto,  §  52. 

This  proved  by  instances  of  delusion 
affecting  strong-minded  persons,  §  53. 

Important  modifications  of  conduct  have 
been  caused  by  visions,  §  57. 

And  even  morbid  derangement  need  not 
incapacitate,  §  58. 

Spiritualistic  delusions  do  not  incapaci- 
tate unless  subjecting  testator  to  un- 
due influence  or  affecting  particular 
provisions,  ^  59. 

Better  opinion  that  delusions  do  not  per 
se  destroy  capacity,  §  60. 


WILLS. 


[§19. 


III.  Lucid  Intervals. 

Where  habitual  insanity  is  shown,  lucid 
intervals  must  be  proved,  §  61. 

Restoration  of  disposing  mind  must  be 
shown,  §  62. 

Rational  character  of  act  affords  pre- 
sumption of  sanity,  §  63. 

So  as  to  idiocy,  §  64. 

IV.    I^'T0XICATI0N. 

To  destroy  business  capacity  must  be 
complete,  §  65. 

So  as  to  wills,  §  66. 

Except  in  cases  of  undue  influence, 
§67. 

When  party  is  intentionally  made 
drunk,  will  is  void,  §  68. 

Habitual  drunkard  not  necessarily  in- 
capacitated, §  69. 

Mere  stimulation  does  not  incapacitate, 
§  70. 

Habitual  drunkenness  may  produce  in- 
sanity and  imbecility,  §  71. 

Illustrative  cases,  Pierce  v.  Pierce,  §  72. 

Handley  v.  Stacey,  §  73. 

Peck  V.  Carey,  §  74. 

Use  of  medicines  may  produce  incapa- 
city, §  75. 

V.  Undue  Influence  and  Fraud. 

Fraud  acting  on  weakness  invalidates 
contracts  and  deeds,  §  76. 

Still  more  so  wills,  §  77. 

Undue  influence  must  amount  to  con- 
straint, §  78. 

Question  is  one  of  capacity  to  resist,  § 
79. 


Mental  weakness  does  not  prove  undue 
influence,  §  80. 

VI.  Presumptions. 
1.  From  act  and  surroundings. 

Contents  of  will  may  indicate  incapacity, 
§  81. 

Inference  from  abuse  of  confidential  re- 
lationship, §  82. 

Inference  from  contents  not  conclusive, 
§83. 

Unjust  will  not  necessarily  invalid,  § 
84. 

Disposing  mind  free  to  decide,  §  85. 

Eccentric  clauses  do  not  invalidate  per 
se,  §  86. 

2.  From  old  age. 

Old  age  does  not  per  se  incapacitate,  § 
87. 

Should  rather  be  protected,  §  88. 

So  of  partial  loss  of  faculties,  §  89. 

And  bodily  infirmities,  §  90. 

Mental  weakness  must  be  shown  to  in- 
capacitate, §  91. 

So  in  England,  §  92. 

Excessive  failure  of  memory  invalidates, 
§93. 

And  senile  dread  of  relatives,  §  94. 

3.  From  physical  defects. 

Competency  exists  in  cases  of  deaf- 
mutes,  but  not  knowledge  of  contents 
of  instrument,  §  95. 

Question  depends  on  education,  §  96. 

Deaf-mutes  may  marry  when  compos 
mentis,  §  97. 

Question  one  for  jury,  §  98. 


I.    CAPACITY. 

§  19.  A  DISPOSING  mind,  the  existence  of  which  is  essential  to 
testamentary  capacity,  is  a  mind  intelligent  enough  to    pigpogino. 
have  a  general  idea  of  the  property  to  be  disposed  of  mind  is  a 

,      „     f        ,  .  ,  f  ,,,..,       .  ,  ,     mind  capa- 

and  of  the  objects  among  which  the  distribution  ought  bie  of  inde- 

to   be   made.      When   we    come,  however,  to   concrete  emuprehen- 

cases,  two  important  and  often  conflicting  conditions  are  ®^°°- 

19 


§  20.]         MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

to  be  considered.  On  the  one  side  the  comfort  of  the  weak,  the 
dependent,  and  the  aged,  depends  largely  upon  their  testamentary 
capacity  being  maintained.  If  they  cannot  leave  property  to  per- 
sons kind  to  them,  they  may  be  often  left  to  suffer  from  want  of 
kindness.  On  the  other  side,  if  a  person  of  feeble  intellect  is  so 
far  exposed  to  the  coercion  or  fraud  of  others  as  to  validate  testa- 
mentary provisions  made  by  him  under  the  pressure  of  such  coercion 
or  fraud,  then  not  only  may  his  life  be  made  miserable,  but  he  may 
become  instrumental  in  perpetrating  great  wrongs.  Hence  it  is 
that  to  constitute  a  disposing  mind  there  must  be,  as  will  hereafter 
be  more  fully  seen,  capacity  as  well  to  resist  undue  influence  as  to 
take  a  general  view  of  the  estate  to  be  bestowed  and  the  objects 
among  whom  it  is  to  be  distributed.^ 

§  20.  An  idiot,  it  is  agreed  on  all  sides,  has  no  testamentary 

capacity  ;^  though  as  to  what  constitutes  idiocy  there  is 
able  to  '  as  much  doubt  in  testamentary  as  in  contractual  issues, 
make  a         u  Idiocy,"  according  to  Dr.  Ray,  "is  that  condition  of 

mind  in  which  the  reflective,  and  all  or  a  part  of  the 
affective  powers,  are  either  entirely  wanting,  or  are  manifested  to 
the  slightest  possible  extent."^  And  to  work  testamentary  inca- 
pacity, under  any  circumstances,  the  privation  of  reason  must  be 
complete.  Yet  even  here  the  question  varies  with  the  facts  of  each 
case. 

1  Mr.  Bigelow  argues  (1  Jarm.  Wills,  ^  Jarman  on  Wills,  5tli  Am.  ed.  *34, 

5tli  Am.  ed.,   note  to  *38),   that   the  vol.  i.  ;  ed.  by  Randolph  &  Talcott,  i. 

term  "  a  disposing  mind,"  is  ambigu-  p.  63  ;  1  Redf.  on  Wills,  §§  vii.,  viii. 

ous  and  misleading.     For,  he  says,  it  ^  Medical  Jurisprudence  of  Insanity,' 

is  •'  applied  to  issues  of  insanity  in  the  1871,  §  58  ;  and  the  following  remarks 

sense  of  perverted  (diseased)  intellect,  are  worthy  of    attention  :    He  tells  us 

where  the  real  question  is,  not  whether  that  "  there  is  even  more  diversity  in 

the  decedent  had  capacity  to  make  a  the  charactei-s  of  the  idiotic  and  imbe- 

will,  but  whether  he  did   (normally)  cile  than    in  those  of  the  sound  ;  and 

will,"  whereas,  "it  is  applicable  pro-  this  truth  must  not  be  forgotten  if  we 

perly  only  to  issues  of  decay  or  of  want  would  avoid  the  flagrant  error  of  regu- 

of  mind ;  the   true  question    in   such  lating     judicial    decisions     by    rules, 

cases  being  whether  the  supposed  tes-  which,  though  perfectly  correct  in  re- 

tator  had  sufficient   mental  ability  at  gard  to  one  case  or  set  of  cases,  may  be 

the  time  to  exercise  will."     See  also  wholly  incorrect  in  regard  to  others." 
Randolph  &  Talcott's  note  to  Jarman,  p. 
100. 

20 


WILLS. 


[§21. 


§  21.  Though  we  may  fail  to  discover  a  definition  of  idiocy  tho- 
roughly comprehensive,  Ave  are  justified  in  saying  that   j„ .     ,,. 
■where  there  is  even  a  low  degree  of  intelligence,  idiocy   gence  be 

,  ,  .  ,   ,  •    ,         mi        ,      ;    •  •      1        •  shown,  hy- 

cannot  be  said  to  exist.  I  he  test  is  comparatively  sim-  pothesis  of 
pie.  If  the  pretended  idiot  can  be  shown  to  have  intel-  ^  ^°'^^  ''^^^^' 
ligently  performed  acts  of  business  during  the  period  in  which 
idiocy  be  claimed  to  have  existed,  the  allegation  of  incompetency 
on  this  ground  falls,  unless  fraud  or  constraint  be  shown.^ 


1  Bannatyne  v.  Bannatyne,  2  Rob. 
475  ;  16  Jur.  864  ;  14  Eug.  L.  &  Eq.  R. 
581.  In  this  case  Dr.  Lushington  said  : 
"  Before  entering  upon  this  branch  of 
the  case,  I  must  bear  in  mind  what  the 
nature  of  the  case  set  up  in  opposition 
to  the  will  is.  I  must  repeat  that  it  is 
not  lunacy — it  is  not  monomania — it  is 
not  any  species  of  mental  disorder,  the 
symptoms  of  which  it  may,  at  periods, 
be  difficult  to  detect ;  but  the  case  pre- 
sented is  that  of  idiocy  or  imbecility, 
the  characteristic  of  which  is  perman- 
ence, with  little  or  no  variation,  though 
often,  in  case  of  idiots,  it  does  some- 
times happen  that  there  will  be  a 
greater  degree  of  excitement  demon- 
strated than  at  other  periods.  How  is 
such  a  case  to  be  met  ?  I  apprehend, 
to  meet  it  and  to  show  that  such  a  state 
of  things  did  not  exist  at  any  given 
period,  proof  of  acts  of  business  are 
most  important  evidence.  Many  acts 
of  business  could  possibly  be  done  by 
a  lunatic,  and  the  lunacy  not  detected  ; 
but  it  is  scarcely  possible  to  predicate 
the  same  of  an  idiot  or  lunatic,  or  an  im- 
becile person.  I  shall  look,  therefore, 
in  the  first  instance,  to  the  acts  of  busi- 
ness. It  is  proved  by  Mr.  Falkner, 
that  the  deceased  kept  an  account  with 
Messrs.  Tuckwell,  at  Bath,  for  four 
years,  from  1818  to  1821,  and  during 
all  that  period,  occasionally  drew 
drafts,  and  all  those  drafts  were  paid 
to  himself  over  the  counter.  Accord- 
ing to  the  evidence,  the  deceased  came 


himself  to  the  counter,  and  there  is  no 
proof  of  any  one  accompanying  him  on 
such  occasions  ;  he  asked  for  the  sum 
he  wanted ;  the  clerk  filled  it  in,  he 
signed  it,  and  took  the  money.  Surely 
no  idiot  could  have  done  this,  for  he 
must  have  exercised  thought  to  go  to 
the  bank,  memory  and  judgment  as  to 
the  thing  required  ;  and  moreover,  his 
conduct  and  demeanor  could  not  at  such 
times  have  been  as  described  by  the 
witnesses  against  the  will,  or,  from  the 
glaring  colors  in  which  his  imbecility 
is  depicted,  it  must  have  been  dis- 
covered, and  the  business  never  could 
have  been  transacted  at  all.  ...  I 
consider  these  transactions,  then,  of 
first-rate  importance  towards  solving 
all  the  difficulties  of  this  case ;  for 
here,  after  the  lapse  of  about  thirty 
years,  the  court  has  the  advantage  of 
facts  proved,  with  the  dates  duly 
affixed  to  them.  There  is,  I  must  say, 
not  the  least  evidence  to  show  that  in 
any  one  of  these  acts  of  business  the 
deceased  was  assisted  by  any  person 
whatever,  the  presumption  is  the  other 
way ;  and  to  put  these  acts  upon  the 
very  lowest  basis  on  which  they  can  be 
placed,  they  do  utterly  disprove  idiocy 
or  imbecility.  I  will  simply  repeat 
what  I  have  already  indeed  said,  that 
those  who  are  afflicted  with  lunacy, 
sometimes  have  tlie  management  of  and 
can  manage  their  pecuniary  aflairs— 
an  idiot,  never." 

21 


§23.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


§  22.  The  cases  considering  the  question,  What  constitutes  un- 
p.g.  .p  ,  soundness  of  mind  in  its  legal  sense  ?  may  be  grouped  in 
theories  as     three  classes.     In  the  first  Ave  have  those  which  proceed 

to  necessary  .  .      ,  ,         _  ,  . 

quaiiflca-       upon  the  notion  that  no   man  is  incapable  or   making 

t'o^s-  a  will  unless  he  is   absolutely  insane  ;    in  the  second 

those  which  proceed  upon  the  test  of  ordinary  business  sagacity 
and  capacity  ;  while  in  the  third  are  to  be  considered  such  as  re- 
quire of  each  testator  certain  specified  qualifications  for  making  a 
will,  the  absence  of  any  one  of  which  incapacitates. 

§  23.  The  most  prominent  case  of  the  first  class  is  the  case  of 
Stewart  v.  Lispenard,^  already  referred  to.  In  this  case 
Theory  that  the  lowest  test  of  Capacity  was  applied.  It  was  there  held 
of  inteiii-  that  a  woman  who  had  always  lived  under  the  care  of  her 
fufficient.  friends,  had  never  attempted  to  transact  business,  who, 
Stewart  v.      ^^  ^he  age  of  forty,  had  not  mastered  the  Lord's  Prayer, 

Lispenara.  o  »'  ?  j      ^ 

and  whose  intellect  and  understanding  were  of  a  very 
low  degree,  was  competent  to  execute  a  will.  The  court  —  the 
senate  of  the  state  of  New  York — reversing  the  chancellor,  ruled 
that  it  is  not  the  province  of  courts  to  measure  the  extent  of  the 
understanding  of  the  testator,  in  passing  on  a  will ;  if  he  be  not 
totally  deprived  of  reason,  whether  he  be  wise  or  unwise,  he  is  the 
lawful  disposer  of  his  property.  Followed  for  a  time  in  several 
cases  in  New  York,^  this  view  has  been  adopted  in  Georgia  ;^  in 
that  state  it  is  now  settled  that  a  disposing  mind  exists  unless  there 
is  a  total  privation  of  reason.^  But  it  is  no  longer  the  rule  in 
New  York.5 


1  26  Wend.  255.  See  an  excellent 
summary  of  this  case,  in  1  Beck's  Med. 
Jur.  850. 

2  Blanchard  v.  Nestle,  3  Denio,  37  ; 
Clarke  v.  Sawyer,  2  Comst.  498  ;  Burger 
V.  Hill,  1  Bradf.  360. 

3  Potts  V.  House,  6  Ga.  324. 

*  Gardner  v.  Lamback,  47  Ga.  133. 
With  the  exception  of  an  old  Pennsyl- 
vania case  (Dornick  v.  Reichenback, 
10  S.  &  R.  84)  these  seem  to  be  all  the 
cases  embodying  this  theory. 

5  Delafield  v.  Parish,  25  N.  Y.  9.  See, 
however,  Crolius  v.  Stark,  7  Lans.  911, 
64  Barb.  112,  where  it  is  said  that  there 

22 


must  be  an  entire  loss  of  intellect  to  in- 
capacitate, and  that  the  testator  must  be 
unable  to  understand  wliat  he  is  doing 
or  the  contents  of  the  paper  when  read 
to  him.  (Ingraham,  P.  J.  1873.)  But 
subsequent  cases  follow  Delafield  v. 
Parish.  An  able  review  of  this  case 
appears  as  an  editorial  in  the  Am. 
Journ.  of  Insanity  for  Oct.  1862  (vol. 
19).  From  this  review  we  extract  the 
following  : — 

"  The  alleged  loss  of  understanding 
on  the  part  of  Mr.  Parish  was,  as  usual, 
dependent  upon  physical  disease.  He 
had  threatening  of  cerebral   disturb- 


WILLS. 


[§24. 


§  24.  The  next  class  of  cases  occupy  an  intermediate  position. 
They  avoid  any  strict  definition,  holding  that,  from  the  nature  of 


ance  for  several  years  before  liis  at- 
tack of  apoplexy  and  paralysis  in  1849, 
and  had  hereditary  tendency  to  disor- 
ders of  that  nature.  The  shock  of  this 
final  attack  rendered  him  insensible 
and  convulsed  for  several  hours. 

"It  was  soon  discovered  that  his  right 
side  was  paralyzed.  His  physician 
characterized  the  seizure  as  'hemi- 
plegia,' leading  to  '  defect  of  motion, 
not  of  sensation,'  and  implicating 
'  the  right  arm  and  the  right  leg,  and 
also  the  organs  of  speech.'  He  sub- 
sequently acquired  a  slight  control 
over  the  right  leg,  but  the  arm,  which 
improved  somewhat  for  the  first  six 
months  immediately  succeeding  the  at- 
tack, afterwards  entirely  lost  its  power. 
The  left  ai"m  and  leg  were  not  perma- 
nently aifected  by  paralysis. 

"It  is  stated  that  Mr.  Parish  recov- 
ered, in  a  considerable  degree,  his 
strength  after  the  first  shock,  and  that 
during  the  remaining  seven  years  of 
his  life  he  enjoyed  good,  but  not  unin- 
terrupted, health.  He  suffered  from  a 
severe  and  painful  disease  of  the  bow- 
els in  October,  1849  ;  subsequently,  he 
had  a  number  of  attacks,  '  distinct 
from  the  general  disease,  but  the  most 
frequent  dependent  upon  its  cause,  or, 
in  other  words,  dependent  upon  the 
condition  of  the  brain  which  led  to  the 
disease.' 

"  '  He  had  one  or  more  severe  attacks 
of  cholera  morbus,  one  or  more  of  in- 
flammation of  the  lungs,  an  abscess 
formed  at  one  time  under  the  jaw, 
which  became  so  large  as  to  threaten 
suff'ocation,  and  there  were  several 
minor  attacks  from  time  to  time.' 

"  In  addition  to  these  disorders,  ever 
after  his  apojjlectic  attack,  Mr.  Parish 
was  subject,  at  regular  intervals,  to 
spasms   or   convulsions,  the  intervals 


extending  from  one  or  two  weeks  to 
six  months,  or  even  a  year.  Their 
approach  was  preceded  by  despondency 
and  irritability  on  the  part  of  the  para- 
lytic, and  after  the  convulsion  had 
passed  off,  he  was  generally  better  and 
brighter  than  he  had  seemed  before. 
The  convulsions  are  described  as  com- 
monly coming  on  suddenly  with  a  noise 
in  the  throat,  resembling  a  shriek  or 
scream,  a  violent  reddening  of  the  face, 
and  a  convulsion  of  the  whole  body — 
the  muscles  becoming  alternately  rigid 
and  relaxed.  Some  of  these  paroxysms 
were  so  violent  as  seriously  to  threaten 
a  fatal  result.  It  was  the  opinion  of 
Mr.  Parish's  attendant  physician  that 
these  convulsions  were  '  connected 
with  the  condition  of  the  brain  left  by 
the  apoplectic  attack.'  The  main  fea- 
ture of  Mr.  Parish's  final  illness  was 
congestion  of  the  lungs,  but  it  was  a 
complicated  disease  depending  also,  in 
the  opinion  of  his  physicians,  upon  the 
condition  of  the  brain. 

"His  power  of  speech  was  mainly 
abrogated  on  his  first  attack,  and  from 
that  time  to  his  death  he  was  never 
able  to  utter  anything  except  a  few 
imperfectly  articulated  monosyllables. 
These  wei-e  princij)ally  '  yes'  and 
'no,'  which  he  pronounced  very  im- 
perfectly, and  there  is  even  great 
doubt  whether  he  ever  uttered  them 
intelligibly. 

"  He  expressed  himself  most  frequent- 
ly by  the  use  of  inarticulate  sounds. 
These  are  described  by  the  witnesses 
as  sounds  resembling  the  syllables, 
'3'ah,  yah,  yah,'  'nyeh,'  '  nin,  nin,' 
'yeah,  yeah,  yeah,'  and  others  of  a 
similar  character. 

"  He  accompanied  these  sounds  by 
gestures  and  motions  of  the  left  hand 
and  ai-m,  and  by  nodding  or  shaking 

28 


§24.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


Theories 
calling  for 
business 
capacity. 


the  case,  the  law  in  this  respect  presents  "  no  formula 
by  which  judges  are  bound. "^  The  possession  of  ordi- 
nary  business   capacity,^    the    ability   to    contract,^   or 


Ills  head.  The  gestures  usually  con- 
sisted in  his  waving  his  hand  in  dif- 
ferent directions  with  his  fingers  ex- 
tended, putting  his  fingers  in  his 
mouth,  or  raising  his  hand  and  shak- 
ing it.  The  external  senses,  feeling, 
hearing,  and  smelling,  do  not  appear 
to  have  been  seriously  affected.  His 
eyesight  was  always  more  or  less  im- 
perfect. 

.  "He  would  occasionally  look  at  books 
and  papers,  but  the  preponderating 
evidence  was  that  he  could  not  read  at 
all.  An  attempt  was  made  to  induce 
him  to  write  with  his  left  hand,  but 
after  several  trials  with  paper,  slate, 
and  blackboard,  which,  in  one  or  two 
instances,  resulted  in  his  writing  after 
a  copy  the  first  few  letters  of  his  name 
in  very  doubtful  characters,  the  at- 
tempt was  abandoned. 

' '  Block-letters  were  procured,  but  he 
would  not  use  them,  and  pushed  them 
away.  A  dictionary  was  suggested, 
but  whether  the  trial  was  ever  made 
or  not,  he  never  adopted  that  method 
of  communicating  his  ideas.  It  was 
the  constant  practice  of  Mr.  Parish's 
nurses,  in  accordance  with  his  wife's 
directions,  to  read  the  newspaper  to 
him,  but  the  proponents  failed  to  prove 
that  he  manifested  comprehension  of 
what  was  thus  communicated,  or  ex- 


hibited any  intelligent  interest  in  the 
reading. 

"  Subsequent  to  the  attack  he  was 
never  intrusted  with  the  management 
of  his  own  affairs,  nor  allowed  to  have 
money  in  his  possession.  He  could  not 
supply  his  own  wants,  and  was  washed, 
dressed,  and  attended  at  table  like  a 
child,  and  was  even  frequently  unable 
to  control  his  evacuations. 

"  His  wishes,  as  might  be  expected, 
were  not  easily  ascertained.  He  ex. 
pressed,  by  the  inarticulate  sounds 
and  motions  before  referred  to,  that  he 
desired  something,  and  various  sug- 
gestions would  be  made  by  those  at- 
tending him  until  he  expressed  assent, 
though  it  often  happened  that  it  was 
utterly  impossible  to  comprehend  him, 
and  the  attempt  would  be  abandoned 
by  both  parties.  He  would  also  assent 
to  contradictory  suggestions. 

"  Before  his  attack  Mr.  Parish  is  de- 
scribed by  his  relatives  and  acquaint- 
ances as  a  '  placid  and  unexcitable 
man,'  of  great  self-respect  and  with 
great  command  of  temper  ;  '  his  man- 
ners were  mild,  gentle,  and  unruffled  ;' 
a  quiet,  undemonstrative  gentleman, 
rarely  exhibiting  any  emotion,  and 
deeply  absorbed  in  his  commercial 
transactions. 

"After  his   attack  he  manifested  a 


'  Eeade,  J.,  in  Lawrence  v.  Steel,  66 
N.  C.  584. 

2  So  in  Illinois,  Lilly  v.  Waggoner, 
27  111.  395  ;  Trish  v.  Newell,  62  111.  196  ; 
Yoe  V.  McCord,  74  111.  33 ;  Meeker  r. 
Meeker,  75  111.  260  ;  Rutherford  v.  Mor- 
ris, 77  111.  397 ;  Carpenter  v.  Calvert, 
83  111.  62  ;  Brown  v.  Riggin,  94  HI.  560  ; 
Rambler  v.  Tryon,  7  S.  &  R.  (Pa.)  90. 

24 


Capacity  is  established  by  capability  to 
transact  business  with  sagacity  and 
decision.  Barnes  v.  Barnes,  Q6  Me. 
286  ;  Gleespin  in  re,  26  N.  J.  Eq.  523  ; 
Fraser  v.  Jennison,  42  Mich.  206  ;  Black 
V.  Ellis,  3  Hill  (S.  C.)  68  ;  Tomkius  v. 
Tomkins,  1  Bailey,  92. 

3  Coleman  v.  Robertson,  17  Ala.  84  ; 
Tobin  V.  Jenkins,  29  Ark.  151. 


•WILLS. 


[§24. 


make  a  deed/  are  the  general  tests  which  they  propose,  leaving  the 
actual  status  of  the  decedent's  mind  to  be  arrived  at  by  the  jury  by 
every-day  standards  and  the  light  of  ordinary  reason. 


marked  change  of  disposition  ;  he  oc- 
casionally shed  tears  ;  and,  in  several 
instances,  exhibited  a  want  of  appre- 
ciation of  the  requirements  of  decorum 
and  even  of  decency.  He  had  occa- 
sional unmeaning  freaks  and  caprices, 
such  as  searching  for  his  clothes  in 
impossible  places,  going  out  to  see  the 
moon,  and  making  excursions  to  the 
garret  and  the  cellar,  for  no  ascer- 
tained purpose ;  and  it  sometimes  be- 
came necessary  to  use  physical  force  to 
prevent  him  from  undertakings  which 
threatened  his  personal  safety. 

"He  exhibited  some  recollection  of 
his  former  daily  and  familiar  places  of 
resort,  and  of  his  former  habits  of  busi- 
ness, which  he  would  attempt,  in  tri- 
fling matters,  to  resume,  as,  by  pulling 
out  his  watch  when  he  passed  the 
City  Hall  clock,  or  insisting,  when 
driven  out,  upon  being  taken  to  the 
bank  of  which  he  was  once  a  director, 
or  to  his  old  office,  or  to  various  trades- 
men with  whom  he  had  been  in  the 
habit  of  dealing.  In  addition  to  these, 
the  proponents,  who  contended  that 
Mr.  Parish's  intellect  was  never  mate- 
rially impaired,  brought  forward  many 
particular  instances  in  which  it  was 
claimed  that  he  manifested  undimin- 
ished intelligence.  One  or  two  of  these 
may  be  mentioned. 

"  It  was  said  by  one  witness  :  '  Hav- 
ing been  riding  out  of  the  city,  he 
would  take  his  watch  oiit  of  his  pocket, 
look  at  it,  turn  round  and  look  at  me, 
when  I  would  ask  him  if  he  wished  to 
return,  if  it  was  late  or  about  his  usual 
drive;  he  would  say  'yes,'  and  nod 
his  head.'     Elsewhere,  the  same  wit- 


ness says :  '  I  recollect,  on  one  occa- 
sion, the  dining-room  clock  was  run 
down  ;  when  he  pointed  at  the  clock,  I 
perceived^  that  it  had  stopped ;  re- 
marked to  him  that  it  had  stopped, 
and  I  would  wind  it  up,  when  he  nod- 
ded his  head.'  An  old  acquaintance 
testified  that  he  recalled  to  Mr.  Parish 
a  ridiculous  circumstance  that  had 
happened  to  them  in  company,  many 
years  before,  and  that  Mr.  Parish 
'  gave  him  to  understand'  that  he  rec- 
ollected the  circumstance,  and  laughed 
at  it  quite  heartily.  These  instances, 
however,  of  which  the  above  are  speci- 
mens, were  isolated,  and  taken  together 
were  not  deemed  of  sufficient  signifi- 
cance to  avoid  the  conclusion  derived 
from  the  facts  before  stated. 

' '  In  regard  to  the  actual  execution  of 
the  codicils,  it  seemed  that  the  counsel 
employed  to  prepare  them,  read  them 
to  Mr.  Parish  in  the  presence  of  the 
subscribing  witnesses,  put  to  him  the 
requisite  formal  questions,  and  re- 
ceived from  him  by  sound  and  gesture, 
as  usual,  what  were  supposed  to  be 
affirmative  replies.  The  counsel  then 
assisted  Mr.  Parish  by  guiding  his 
hand  while  he  made  his  mark.  At 
least  this  was  the  case  at  the  execu- 
tion of  the  first  and  second  codicils  ; 
there  was  no  evidence  whether  or  not 
he  received  assistance  in  making  his 
mark  at  the  execution  of  the  third. 

"  Such  were  the  main  points  of  the 
case  presented  to  the  court  of  appeals. 
The  opinion  of  the  court  was  delivered 
by  Judge  Davies,  from  which  we  quote 
the  comments  upon  tlie  facts  which  we 
have  narrated,  and  the  conclusions  in 


1  Tyson  v.  Tyson,  37  Md.  567. 


25 


§  25.]         MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

§  25.  But  the  preponderance  of  authority  is  to  the  effect  that 
the  law  requires  not  so  much  any  particular  character  of  intellect, 


wliicli  tlie  majority  of  the  Court  con- 
curred. 

'  'After  adverting  to  the  change  in  Mr. 
Parish's  disposition  after  his  attack, 
Judge  Davies  says  :  '  How  diametri- 
cally opposite  to  the  previous  conduct 
of  his  whole  life  is  that  now  exhibited ! 
And  the  inquiry  forces  itself  upon  the 
mind,  what  cause  has  produced  such 
results  ?  Can  such  totally  inconsistent 
and  opposite  characters  be  reconciled 
with  the  theory  that  the  faculties,  the 
mind,  and  moral  perceptions  of  Mr. 
Parish  underwent  no  change,  but  were 
the  same  after  July  19,  1849,  as  they 
were  before  that  day  ?  .  .  .  .  We 
confess  ourselves  totally  unable  to  as- 
sent to  any  such  theory.  The  convic- 
tion on  our  mind  is  clear  that  these 
facts  and  circumstances  show  uner- 
ringly that  the  attack  of  July  19th  ob- 
literated the  mental  powers,  the  moral 
perceptions,  the  reiined  and  gentle  sus- 
ceptibilities, of  Henry  Parish  ;  that  after 
that  period  he  ceased  to  be  the  mild, 
intelligent,  and  unruffled  man  he  had 
been  theretofore,  and  that  thereafter 
he  was  not  responsible  for  the  unbe- 
coming and  ungentlemanly  conduct 
he  so  frequently  exhibited.  He  then 
ceased  to  be  Henry  Parish,  and  was  no 
longer  an  accountable  being.'  Upon 
the  point  of  Mr.  Parish's  method  of 
communicating  his  ideas.  Judge  Davies 
says  :  '  With  these  imperfect  media 
for  ascertaining  the  thoughts  of  Mr. 
Parish,  it  is  doing  no  injustice  to  any 
one  to  assume  that  they  have  been 
mistaken  when  they  supposed  that 
they  correctly  understood  him.  We 
more  naturally  and  readily  come  to 
this  result,  because  we  find  that  all 
who  had  any  intercourse  with  Mr. 
Parish,  on  many  occasions,  found  great 

26 


difficulty  in  understanding  his  wishes 
and  thoughts,  if  they  even  under- 
stood them  at  all ;  and  the  instances 
are  frequent  and  clearly  established 
where  he  often  made  an  affirmative  and 
negative  motion  of  his  head,  imme- 
diately succeeding  each  other,  to  the 
same  question,  leaving  the  inquirer  in 
perplexity  which  he  really  intended. 

' ' '  All  the  testimony  shows  that  he 
could  only  indicate  with  his  fingers 
and  hand,  or  by  sounds,  that  he  wanted 
something,  or  that  something  was  the 
matter,  and  which  motions  or  sounds 
were  construed  by  those  around  him 
as  evidences  of  his  wish  to  put  a  ques- 
tion, whereupon  they  began  to  suggest 
various  topics,  and  when  they  thoiight 
they  perceived  that  they  had  hit  upon 
the  subject  in  his  mind  they  supposed 
he  wished  to  inquire  about,  they  put 
such  questions  as  suggested  themselves 
to  them,  and  to  which  they  supposed 
they  had  received  affirmative  or  nega- 
tive answers.  If  Mr.  Parish  had  no 
power  to  express  a  wish  to  destroy  a 
will,  it  follows  he  had  none  to  create 
one,  and  the  manifestation  of  his 
wishes  depended  entirely  upon  the  inter- 
preter and  the  integrity  of  the  interpreta- 
tion. 

"  '  It  is  thus  seen  that  great  difficulty 
and  uncertainty,  to  say  the  least  of  it, 
attended  any  expression  of  the  thoughts 
or  wishes  of  Mr.  Parish,  and  that  a 
large  number  of  those  having  business 
or  intercourse  with  him,  utterly  failed 
to  attach  or  obtain  any  meaning  to  his 
signs,  sounds,  motions,  or  gestures. 
The  natural  and  obvious  deductions  to 
be  made  from  all  these  facts  and  cir- 
cumstances are,  that  Mr.  Parish  had 
no  ideas  to  communicate,  or,  if  he  had 


WILLS. 


[§25. 


as  the  ability  to  make  certain  eflforts  of  mind  and  me-    Theory  that 
mory.     These  are  stated  variously  ;  but  the  cases  come    memoryfs 
to   the    same   general   result,  namely,  that    the    party   ^^ecessaiy. 


any,  that  the  means  of  doing  so,  with 
certainty  and  beyond  all  cavil  and 
doubt,  were  denied  to  him.' 

"After  referring  to  the  testator's  fail- 
ure to  communicate  by  writing,  or  by 
the  use  of  any  artificial  means.  Judge 
Davies  states  the  final  conclusions,  as 
follows  : — 

"  '  To  what  result  does  this  review  of 
the  facts  and  circumstances  in  this 
case,  adverted  to  and  commented  on, 
lead  the  mind  ?  On  a  careful  con- 
sideration of  them  all,  with  a  most 
anxious  desire  to  arrive  at  a  just  and 
correct  conclusion,  we  are  clearly  of 
the  opinion  that  the  attack  of  Mr. 
Parish  on  the  19th  of  July,  1849,  ex- 
tinguished his  intellectual  powers,  so 
obliterated  and  blotted  out  his  mental 
faculties,  that  after  that  period  he  was 
not  a  man  of  sound  mind  and  memory 
within  the  meaning  and  language  of 
the  statute,  and  was,  therefore,  incom- 
petent to  make  a  will 

"  '  It  is  not  the  duty  of  the  court  to 
strain  after  probate,  and  especially  to 
seek  to  establish  a  posterior  will,  made 
in  conceded  enfeebled  health,  unsus- 
ta,ined  by  previous  declaration  of  in- 
tention, over  a  prior  will,  made  in 
health,  and  with  care  and  deliberation, 
when  the  provisions  of  the  posterior 
will  are  in  direct  hostility  to  and  con- 
flict with  those  of  the  prior  one. 

"  '  It  would  be  in  violation  of  long 
and  well-established  principles,  and  an 
almost  uniform  and  unbroken  current 
of  decision  in  England  and  in  this 
country,  to  admit  to  probate  testamen- 
tary papers,  prepared  and  executed 
under  the  circumstances  these  were,  by 
a  man  who  was  in  apparent  full  phy- 


sical health,  and  possessing  nearly  his 
natural  strength,  who  could  not  or 
would  not  write,  who  could  not  or 
would  not  speak,  who  could  not  or 
would  not  use  the  letters  of  the  alpha- 
bet or  even  a  dictionary,  for  the  pur- 
pose of  conveying  his  wishes,  upon 
proof  solely  that  they  were  supposed  to 
express  the  testator's  wishes,  from 
signs,  gestures,  and  motions  made  by 
him,  and  especially  when  it  appeared 
that  such  signs,  gestures,  and  motions 
were  often  contradictory,  uncertain, 
frequently  misunderstood,  and  often 
not  comprehended  at  all.' 

"Judge  Davies  states  at  length  the 
three  principles  of  law  which  he  con- 
ceived to  be  applicable  to  the  case. 

' '  The  first  regards  testamentary  ca- 
pacity, the  second  the  burden  of  proof, 
the  third  the  maxim,  qui  se  scripsit 
hceredem.  The  chief  interest  and  im- 
portance attaching  to  the  decision, 
turn  upon  the  discussion  of  the  first  of 
these  —  the  doctrine  of  testamentary 
capacity. 

"  Up  to  the  present  time,  the  well- 
known  case  of  Stewart  v.  Lispenard, 
decided  in  the  court  of  errors  in  1841 
(26  Wend.  255),  has  been  held  to  be 
of  binding  authority.  The  rule  of  tes- 
tamentary capacity  there  adopted  was 
extremely  rigorous,  and  the  proposi- 
tion was  sustained  that  in  passing  upon 
the  validity  of  a  will,  courts  do  not 
measure  the  understanding  of  the  tes- 
tator, but,  if  he  have  any  at  all,  and 
be  not  an  absolute  idiot,  totally  de- 
prived of  reason,  he  is  the  lawful  dis- 
poser of  his  own  property,  and  his  will 
stands  as  a  reason  for  his  actions. 
This  doctrine  is  repudiated,  or  at  least 
modified,  in  the  Parish  Will  decision, 

27 


§25.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


must  be  able  to  remember  what  property  he  has,  to  consider  who 
have  claims  upon  it,  and  to  know  what  disposition  he  is  making 
of  it.  Delusions  affecting  any  one  of  these  subjects  will  destroy 
capacity.^     And  this,  as  has  already  been  said,  is  the  best  test. 


and  the  Lispeuard  case  expressly  over- 
ruled. In  the  language  of  the  opinion, 
derived  from  various  high  authorities, 
the  testator  must  have  "  sufficient 
capacity  to  comprehend  perfectly  the 
condition  of  his  property,  his  relations 
to  the  persons  who  were,  or  should,  or 
might  have  been  the  objects  of  his 
bounty,  and  the  scope  and  bearing  of 
the  provisions  of  his  will. 

"  '  He  must  have  sufficient  active  mem- 
ory to  collect  in  his  mind,  vjithout 
prompting,  the  particulars  or  elements 
of  the  business  to  be  transacted,  and 
to  hold  them  in  his  mind  a  sufficient  length 
of  time  to  perceive  at  least  their  obvi- 
ous relations  to  each  other,  and  to  be 
able  to  form  some  rational  judgment  in 
relation  to  them.' 

"This  is  receding  from  an  extreme 
and  perhaps  a  dangerous  position, 
hitherto  occupied  by  the  court  of  last 
resort ;  and  the  establishment  of  a 
more  rational  doctrine.  To  hold,  as  a 
settled  rule  of  law,  that  testamentary 
capacity  exists  where  there  is  even  '  a 
glimmering  of  reason,'  is  scarcely  in 
accordance  with  an  enlightened  system 
of  jurisprudence,  or  even  with  the  dic- 
tates of  ordinary  common  sense." 

1  Four  cases  may  be  considered  lead- 
ing on  this  subject :  Converse  v.  Con- 
verse, 21  Vt.  168  ;  Harrison  v.  Rowan, 
3  Wash.  C.  C.  580  ;  Delafield  v.  Parish, 
25  N.  Y.  9  ;  and  Banks  v.  Goodfellow, 
L.  R.  5  Q.  B.  549.  In  the  first  case. 
Judge  Redfield  said  that  it  was  neces- 
sary for  the  party  to  have  something 
more  than  mere  passive  memory  re- 
maining. "He  must  undoubtedly," 
said  the  judge,  "  retain  sufficient  active 
tnemory  to  collect  in  his  mind,  without 

28 


prompting,  particulars  or  elements  of 
the  business  to  be  transacted,  and  to 
hold  them  in  his  mind  a  sufficient 
length  of  time  to  perceive  at  least  their 
more  obvious  relations  to  each  other, 
and  be  able  to  form  some  rational  judg- 
ment in  relation  to  them.  The  ele- 
ments of  such  a  judgment  should  be 
the  number  of  his  children  ;  their  de- 
serts, with  reference  to  conduct  and 
capacity,  as  well  as  need,  and  what  he 
had  done  before  for  them,  relatively  to 
each  other,  and  the  amount  and  condi- 
tion of  his  property,  with  some  other 
things,  perhaps."  Mr.  Justice  Wash- 
ington charged  the  jury  in  Harrison  v. 
Rowan,  a  case  approved  by  Lord  Chief 
Justice  Cockburn,  in  Banks  v.  Goodfel- 
low, that  "the  testator  ought  to  be 
capable  of  making  his  will  with  an  un- 
derstanding of  the  business  in  which  he 
is  engaged  ;  a  recollection  of  the  proper- 
ty he  means  to  dispose  of ;  of  the  per- 
sons who  are  the  objects  of  his  bounty, 
and  the  manner  in  which  it  is  to  be 
distributed  between  them."  The  lan- 
guage of  the  court  in  Delafield  v.  Parish 
has  been  already  given  ;  and  the  opin- 
ion of  Cockburn,  C.  J.,  in  Banks  v. 
Goodfellow  is  to  the  same  efi'ect.  And 
these  qualifications  are  the  test  whether 
unsoundness  of  mind  arises  from 
congenital  defect  or  mental  disease. 
See  Banks  v.  Goodfellow,  ut  supra,  at  p. 
570.  The  English  cases  following  this 
case  are,  Smee  v.  Smee,  L.  R.  5  P.  D. 
84  ;  49  L.  J.  P.  8  ;  Boughton  v.  Knight, 
3  L.  R.  P.  &  D.  64.  Greenwood  v.  Green- 
wood, 3  Curt.  Append.  30  ;  Harwood  v. 
Baker,  3  Moore  P.  C.  C.  282,  are  earlier 
cases.  In  this  country  may  be  cited  to 
the   same   effect,    Hathorn  v.  King,  8 


WILLS. 


[§26. 


Memory  to  this  extent  the  party  must  have.  Although  mere  weak- 
ness of  mind  does  not  generally  incapacitate,  yet  a  testator  cannot 
dispose  of  property,  the  possession  of  which  he  but  barely  appre- 
ciates, among  parties  whose  relations  to  himself  he  knows  but  does 
not  understand ;  while,  on  the  other  hand,  if  he  has  this  disposing 
capacity,  nothing  can  prevent  him  from  making  a  will  as  eccentric,  as 
injudicious,  or  as  unjust  as  caprice,  frivolity,  or  revenge  can  dictate. 
§  26.  In  a  late  English  case,^  Sir  James  Hannen,  in  charging 
the  jury,  took  especial  care  to  guard  against  incapa-  Eno-iish 
city  in  relation  to  the  natural  objects  of  the  testator's    clings  that 

*'  ''  _  such  quail- 

bounty,^     The  testator  must  have,  he  said,  "a  memory    fications in- 


Mass.  371 ;  Comstock  v.  Hadlyme,  8 
Conn.  265  ;  Van  Guysling  v.  Van  Ku- 
ren,  35  N.  Y.  70  ;  Horn  v.  Pullman,  72 
N.  Y.  269  ;  Clarke  v.  Fisher,  1  Paige, 
171 ;  Brown  v.  Torrey,  24  Barb.  583  ; 
Kinne  v.  Johnson,  60  Barb.  69  ;  Rey- 
nolds V.  Root,  62  Barb.  250  ;  Moore  v. 
Moore,  2  Bradf.  261  ;  Farman  v.  Smith, 
7  Lans.  443  ;  La  Bau  v.  Vanderbilt,  3 
Redf.  384  ;  and  see  Redfield's  Reports, 
passim,  for  cases  following  Delafield  v. 
Parish  ;  Boyd  v.  Eby,  8  Watts,  66  ; 
Daniel  v.  Daniel,  39  Penn.  St.  191  ; 
Thompson  v.  Kyner,  65  Penn.  St.  368  ; 
Tawney  v.  Long,  76  Penn.  St.  106; 
Wood  V.  Wood,  4  Brewst.  75  ;  Horbach 
V.  Denniston,  3  Pittsb.  49  ;  Den  v.  .John- 
son, 4  N.  J.  L.  454 ;  Den  v.  Vancleve,  4 
N.  J.  L.  589  ;  Sloan  v.  Maxwell,  3  N.  J. 
Eq.  563  ;  Andress  v.  Weller,  3  N.  J.  Eq. 
604 ;  Lyons  v.  Van  Riper,  26  N.  J.  Eq. 
337  ;  Errickson  v.  Fields,  30  N.  J.  Eq. 
634  ;  Cordrey  v.  Cordrey,  1  Houst.  269  ; 
Jamison  v.  Jamison,  3  Houst.  108 ; 
Higgins  V.  Carlton,  28  Md.  115  ;  McEl- 
wee  V.  Ferguson,  43  Md.  479  ;  Brown w. 
Ward,  53  Md.  376  ;  Home  v.  Home,  9 
Ired.  99  ;  Stancell  v.  Kenan,  33  Ga.  56  ; 
Ragan  v.  Ragan,  33  Ga.  Supp.  106 ; 
Taylor  v.  Kelley,  31  Ala.  59  ;  Leeper 
V.  Taylor,  47  Ala.  221  ;  Kingsbury  t'. 
Whitaker,  32  La.  Ann.  1055  ;  Shrop- 
shire V.  Reno,  5  J.  J.  Marsh.  91  ;  Har- 
per's Will,  4  Bibb,   244 ;  Garrison  v. 


Blanton,  48  Tex.  299  ;  Wisener  v.  Mau- 
pin,  58  Tenn.  342  ;  Beaubien  v.  Cicotte, 
12  Mich.  459  ;  Bundy  v.  McKniglit,  48 
Ind.  502  ;  McClintock  v.  Curd,  32  Mo. 
44  ;  Harvey  v.  Sullens,  56  Mo.  372  ;  Be- 
noist  V.  Murrin,  58  Mo.  307  ;  Young 
V.  Ridenbaugh,  67  Mo.  574;  Holdeu 
V.  Meadows,  31  Wis.  284  ;  Blakeley's 
Will,  48  Wis.  294 ;  Hubbard  v.  Hub- 
bard, 7  Oreg.  42.  Many  of  these  cases 
state  the  condition  to  be  that  "the  tes- 
tator must  kiiow  what  he  Was  doing  at 
the  time."  It  is  evident  that  this  does 
not  mean  that  the  testator  need  only  l)e 
conscious  that  he  is  making  a  will ;  it 
is  to  be  traced  to  the  language  of  Judge 
Washington  in  Harrison  v.  Rowan,  ut 
supra,  and  in  Stevens  v.  Vancleve,  4 
Wash.  C.  C.  R.  262.  In  both  of  these 
cases,  after  enumerating  the  necessary 
qualifications,  the  judge  summed  them 
up  in  the  sentence,  "Were  the  testa- 
tor's mind  and  memory  suificiently 
sound  to  enable  him  to  know  and  un- 
derstand the  business  in  which  he  was 
engaged  at  the  time  when  he  executed 
his  will  ?"  Some  cases  hold  that  it  is 
necessary  that  the  testator  should  know 
what  he  is  about  and  to  whom  he  is  giv- 
ing his  property.  See  Hornev.  Home,  9 
Ired.  99,  and  Missouri  cases  cited  above. 

1  Boughton  V.  Knight,  L.  R.  3  P.  & 
D.  64. 

2  See  infra.  Delusions,  §§  34  et  seq. 

29 


§  26.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

voive  a  to  recall  the  several  persons  who  may  be  fitting  objects 
gree  of  ca-  of  his  bounty,  and  an  understanding  to  comprehend  their 
pacity.  relationship  to  himself  and  their  claim  upon  him."    From 

this  necessity  he  argues  that  it  requires  a  peculiar  degree  of  sound- 
ness of  mind  to  make  a  will.  Against  this  theory  militate  many 
American  cases  which  consider  that  less  mind  is  required  to  make 
a  valid  will  than  a  valid  contract  ;^  but  all  these  cases  insist  upon  the 
possession  by  the  testator  of  the  specific  qualifications  already  noticed. 
In  Boughton  v.  Knight,  Sir  J.  Hannen  reviewed  the  various  acts  con- 
cerning a  man's  capacity  to  do  which  there  might  be  a  question,  and 
came  to  this  conclusion:  "Whatever  degree  of  mental  soundness  is 
required  for  any  one  of  these  things — responsibility  for  crime,  ca- 
pacity to  marry,  capacity  to  contract,  capacity  to  give  evidence  as  a 
witness — I  must  tell  you  .  .  .  that  the  highest  degree  of  all,  if 
degrees  there  be,  is  required  in  order  to  constitute  capacity  to  make 
a  testamentary  disposition  .  .  .  because  it  involves  a  larger 
and  wider  survey  of  facts  and  things  than  any  one  of  those  matters 
to  which  I  have  drawn  your  attention."^  In  a  later  case^  he  said,  in 
explanation  of  this  language,  "  I  never  said  that  it  requires  a  greater 
degree  of  soundness  of  mind  to  make  a  will  than  to  do  any  other 
act.  .  .  •  What  I  have  said  ...  is,  that  if  you  are  at 
liberty  to  draw  distinctions  between  various  degrees  of  soundness 
of  mind,  then,  whatever  is  the  highest  degree  of  soundness  is  re- 
quired to  make  a  will.  That  is  very  different.  .  .  .  From  the 
character  of  the  act,  it  requires  the  consideration  of  a  larger  variety 
of  circumstances  than  is  required  in  other  acts,  for  it  involves  re- 
flection upon  the  claims  of  the  several  persons  who,  by  nature,  or 
through  other  circumstances,  may  be  supposed  to  have  claims  on 
the  testator's  bounty,  and  the  power  of  considering  these  several 
claims,  and  of  determining  in  what  proportions  the  property  shall 
be  divided  amongst  the  claimants." 

Similar  language  to  this  was  held  by  the  court  in  an  Illinois 
case,*  where  the  rule  as  stated  in  Converse  v.  Converse^  is  objected 


1  Converse  r.  Converse,  21  Vt,  168 
Comstock  V.  Hadlyne,  8  Conn.  261 
Thompson  v.  Kyner,  65  Penn.  St.  368 
Harrison  v.  Rowen,  3  Wash.  C.  C.  586 
Stevens  v.  Vancleve,  4  Wash.  C.  C,  262.         5  Supra,  §  25 

30 


2  Boughton  V.  Knight,  ut  supra,  p.  72. 
'  Burdett  v.  Thompson,  L.  R.  3  P. 
&  D.  72  note. 

*  Trish  V.  Newell,  62  111.  196. 


WILLS.  [§  27. 

to.^  At  the  same  time  there  is  a  general  acquiescence  in  Judge  Wash- 
ington's conclusion  that  "  it  is  not  necessary  that  the  testator  should 
view  his  will  with  the  eye  of  a  lawyer,  and  comprehend  its  provisions 
in  the  legal  form.  It  is  sufficient  if  he  has  such  mind  and  memory  as 
will  enable  him  to  understand  the  elements  of  which  it  is  composed 
— the  disposition  of  his  property  in  its  simplest  form."^  A  man  who 
could  make  a  will  under  certain  circumstances  might  fail  to  grasp 
the  subject  under  others.^  Under  any  circumstances  the  question 
is  one  of  degree,*  and  we  may  therefore  accept  the  opinion  of  the 
Illinois  supreme  court,  that  the  question  in  such  cases  is,  "Were 
the  testator's  mind  and  memory  sufficiently  sound  to  enable  him  to 
know  and  understand  the  business  in  which  he  was  engaged  at  the 
time  he  executed  the  will?  the  competency  of  the  mind  being  judged 
by  the  nature  of  the  act  to  be  done,  from  a  consideration  of  all  the 
circumstances  of  the  case."^ 

§  27.  As  is  the  case  with  contracts,  issues  in  cases  of  the  class 
now  before  us  are  largely  dependent  upon  the  question  p^rty  must 
of  undue  influence  by  others.     If  no  such  undue  influence    have  capa- 

•  -n    1         city  to  re- 

is  exercised,  a  degree  oi  testamentary  capacity  will  be    sist  fraud 
regarded  as  adequate,  when  this  degree  of  testamentary 
capacity  would  be  regarded  as  inadequate  were  it  unduly  acted 
upon  by  the  force   or  fraud  of  others.     The  question  is,  was  the 

'  Trish  V.  Newell,  ut  supra,  204,  per  fectly  sane  mind  of  the  testator  dwelt 

McAllister,  J.  upon  them. 

2  Judge  Washington  in  Harrison  v.  *  Lord  Cranworth  in  Boyse  v.  Ross- 
Eowan,  ubi  supra.  borough,  6  H.  L.  C.  at  p.  45. 

3  As  is  said  by  Judge  Washington  in  ^  Trish  v.  Newell,  62  111.  205.  And 
Harrison?;.  Rowan,  "most  men  at  dif-  see  Carpenter  v.  Calvert,  83  111.  62; 
ferent  periods  of  their  lives  have  medi-  Garrison  v.  Blanton,  48  Tex.  299.  See 
tated  upon  the  subject  of  the  disposi-  Lawrence  v.  Steel,  66  N.  C.  584. 

tion  of  their   property  by  will;    and  Theobald  (Wills,  1881,  p.  14)  states 

when  called  upon  to  have  their  in  ten-  the  rule  to  be,  that  "a  testator  must, 

tions  committed  to  writing,  they  find  at  the  time  of  making  his  will,  have 

much  less  difficulty  in  declaring  their  an  understanding  of  the  nature  of  the 

intentions  than  they  would  in  compre-  business  in  which  he  is  employed,  a 

bending    business    in   some    measure  recollection  of  the  property  he  means 

new."     But  this  can  only  be  so  when  to  dispose  of,  of  the  persons  who  have 

the  conditions  of  the  disposition  remain  a  claim  to  be  the  objects  of  his  bounty, 

practically  the  same  as  when  the  per-  and  the  manner  in  which  it  is  to  be 

distributed." 

31 


§  28.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

document  in  question  the  testator's  will  ?  If  he  had  a  disposing 
mind,  no  matter  how  feeble,  and  this  disposing  mind  was  allowed 
freedom  in  its  play,  then  the  will  is  to  be  sustained.  But  if  he  was 
defrauded  or  coerced  by  those  about  him,  then  the  will  is  to  be  set 
aside,  no  matter  how  high  may  have  been  the  standard  of  his  capa- 
city.^ Two  important  qualifications,  hoAvever,  are  to  be  here  kept 
in  mind :  First,  the  lower  the  degree  of  intellect,  the  less  the 
amount  of  proof  of  fraud  or  of  coercion  required  to  set  aside  a  will ; 
an  amount  of  fraud  or  of  coercion  which  a  strong  mind  would  at 
once  repel,  may  be  yielded  to  by  a  weak  mind.^  Secondly,  it  is 
not  necessary  that  absolute  freedom  from  influence  should  be 
shown.  There  is  no  testator  absolutely  free  from  influence.^  The 
test  is,  was  there  such  influence  applied  as  to  take  away  his  freedom 
of  disposition?  If  so,  if  his  will  was  overcome  by  force,  either  phy- 
sical or  m.oral,  or  perverted  by  fraud,  then  a  testamentary  disposition 
so  made  cannot  stand.'* 

§  28.  Weakness  of  mind  and  forgetfulness,  therefore,  are  not 
^  ^     sufiicient  to  invalidate  a  will  if  it  appear  that  the  testa- 

tai  weak-      tor's  mind  was  capable  of  attention  and  exertion  when 

ness  does  .  k      t     i         i 

not  incapa-  roused,  and  was  not  imposed  upon.*  it  has  been  truly 
^^  ^  ^'  said  that  "  the  weak  have  the  same  rights  with  the  pru- 

dent or  strong-minded  to  dispose  of  their  property."^  In  general, 
so  that  capacity  exists,  courts  will  not  undertake  to  measure  the 
degree  of  that  capacity,  and  they  will  protect  those  deficient  in  strong 
natural  ability  in  the  exercise  of  the  powers  they  possess.^ 

'  See  infra,  §§  77  et  seq.     Kinleside  ^  Strong,  J.,  in  Newhouse  v.  Godwin, 

V.  Harrison,  2  PhilL  449  ;  Gaither  v.  17  Barb.  236. 

Gaither,  20  Ga.  709  ;  Collins  v.  Town-  7  Osmond  w.  Fitzroy,  3  P.  Wms.  129; 

ley,  21  N.  J.  Eq.  353.     See  also  cases  Andress   v.  Weller,   3  N.  J.  Eq.   604 ; 

cited  in  the  next  section.  Jamison  v.  Jamison,  3   Hoiist.   (Del.) 

2  Infra,  §§   77  et  seq.,  82  et  seq.,  87  108;  Duffield  v.  Robeson,  2  Harr.  375  ; 

et  seq. ;  Reynolds  v.  Root,  62  Barb.  250.  Elliott's  Will,  2  J.  J.  Marsh.  340  ;  Tom- 

*  Infra,  §§  80  et  seq.  kins    v.    Tomkins,  1   Bailey,  92.     See 

*  See  generally  infra,  as  above;  1  infra,  §  87.  In  Hopple's  Est.,  7  W.  N. 
Jarman  on  Wills,  Bigelow's  ed.,  *35  ;  C.  (Penn.)  523,  Judge  Ashman  (0.  C.) 
Randolph  and  Talcott's  ed.,  note  E  to  said  that  "want  of  memory,  vacilla- 
chap.  iii. ;  1  Redf.  Wills,  *508,  and  tion  of  purpose,  credulity,  vagueness 
succeeding  pages.  of    thought  may  coexist   with    testa- 

5  Tuffnell  V.  Constable,  3  Knapp  P.  mentary  capacity."  This  seems  to  be 
C.  C.  122.  somewhat  broad  in  view  of  the   fact 

32 


WILLS. 


[§30. 


§  29.  If  eccentricities  are  to  incapacitate  a  man  from  making  a 
will,  few  valid  wills  could  be  made,  and  often  men  of  the 

111-  1  1         f       •  -^°''  <io6s 

strongest  character  would  be  incapable  of  will  making,  eccentri- 
Sometimes  the  attendant  of  old  age,  sometimes  the  con-  ^^  ^' 
comitant  of  genius,  often  the  consequence  of  hard  treatment  by 
others,  eccentricity  cannot  be  regarded  as  working  testamentary 
incapacity  without  depriving  of  this  capacity  some  of  the  most  meri- 
torious as  well  as  most  intelligent  of  mankind.  It  is  otherwise, 
however,  as  will  presently  be  seen  more  fully,  when  eccentricity 
takes  the  phase  of  monomania  as  to  one  of  the  objects  of  testa- 
mentary disposition.^ 

§  30.  So  far  as  concerns  collateral  contentions,  the  burden  of 
proof  is  on  those  assailing  the  validity  of  a  will.     All 
persons  not  under  judicial  decree  of  insanity  are  pre-    to'thrbur- 
sumed  to  be  sane  until  the  contrary  is  proved.^     And   *ienof 

.  proof. 

this  is  in  some  jurisdictions  held  to  be  the  case  in  an 
issue  of  devisavit  vel  non.^     But  the  rale  is  taken  to  be  otherwise 
in  some  of  our  states  and  also  in  England,  those  propounding  a  will 
being  required  to  prove  the  capacity  of  the  testator.* 


that  the  supreme  court  of  that  state 
has  adopted  the  ruling  of  Converse  v. 
Converse  and  Harrison  v.  Rowan  ;  but 
it  serves  to  illustrate  the  unwillingness 
of  judges  to  refuse  capacity  to  those 
whose  mental  powers  have  become 
dulled. 

'  Eccentricity  differs  from  mono- 
mania in  this,  that  it  is  a  conscious 
aberration,  and  consists  of  peculiarities 
which  are  indulged  in  in  defiance  of 
popular  sentiment ;  whereas  mono- 
mania is  unconscious.  1  Redf.  on 
Wills,  *72.  The  cases  exhibit  many 
interesting  phases  of  eccentricity. 
Hamilton  v.  Hamilton,  10  R.  I.  538  ; 
Reynolds  v.  Root,  62  Barb.  250  ;  Brick 
V.  Brick,  66  N.  Y.  144;  La  Bau  v. 
Vanderbilt,  3  Redf.  384  ;  Trumbull  v. 
Gibbons,  22  N.  J.  L.  117  ;  Errickson  v. 
Fields,  30  N.  J.  Eq.  634  ;  Lewis's  Case, 
33  N.  J.  Eq.  219  ;  Kise  v.  Heath,  33  N. 
J.  Eq.  239  ;  Merrill  v.  Rush,  33  N.  J.  Eq. 
VOL.  I. — 3 


537  ;  Higgins  v.  Carlton,  28  Md.  115 ; 
Brown  v.  Ward,  53  Md.  376  ;  Gardner 
V.  Lamback,  47  Ga.  133  ;  Kingsbury  v. 
Whitaker,  32  La.  Ann.  1055  ;  Carpen- 
ter V.  Calvert,  83  111.  62  ;  Blakeley's 
Will,  48  Wis.  294 ;  Smith's  Will,  8  N. 
W.  Rep.  602.  See,  also,  Frere  v.  Pea- 
cock, 1  Rob.  442  ;  Morgan  v.  Boys,  cited 
1  Redf.  on  Wills,  *82,  from  Taylor; 
Austen  v.  Graham,  8  Moore  P.  C.  C. 
493.  For  a  case  where  a  will  was 
sustained  though  the  eccentricities  of 
the  testator  were  most  extravagant, 
see  Lee  v.  Lee,  4  McCord,  183. 

2  Whart.  on  Ev.  §  1252 ;  Theobald 
on  Wills,  14. 

3  Swinburne,  44,  pt.  2,  §  3. 

*  As  to  the  English  rule,  see  Smee  v. 
Smee,  etc.,  L.  R.  5  P.  D.  84 ;  Bougliton 
V.  Knight,  L.  R.  3  P.  &  D.  64.  A  re- 
view of  the  cases  in  this  country  will 
be  found  in  Randolph  and  Talcott's 
edition  of  Jarman  on  Wills  (5th  Am. 

33 


§33.] 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


Non-ex- 
perts, as 
well  as  ex 
perts,  may 
give  opin- 
ions. 


§  31.  As  will  hereafter  be  seen  more  fully,  a  non-ex- 
pert (e.  g.  a  lay  attendant  or  nurse,  or  friend,  or  business 
adviser)  may  be  called  upon  to  give  his  opinion  as  to 
the  testator's  sanity  in  all  cases  in  which  the  symptoms 
are  not  occult,  but  are  distinguishable  by  non-specialists. 
A  fortiori^  may  experts  in  the  treatment  of  the  insane,  give  opin- 
ions as  to   the  sanity  of  particular  persons,  such  opinions  being 
based  on  personal  observations.^ 

§  32.  Experts,  also,  in  these,  as  well  as  in  all  other 
Experts        issues  in  which  sanity  is  involved,  may  be  examined  on 

may  be  ,       .      , 

asked  as  to   hypothetical  cases,     ihey  cannot,  however,   be    asked 

cai^case.  ^"     their  opinions  as  to  the  evidence  in  any  case  involving 

contested  questions  of  fact.^ 

§  33.  As  is  shown  in  detail  in  another  work,^  and  as  we  shall 

have  hereafter  occasion  to  see  more  fully  when  we  pro- 
Speculative  ,  .  . 
opinions  of  cocd  to  discuss  the  authority  of  experts  in  their  general 

tmedtoiitl  relations,^  the  speculative  opinions  of  experts  employed 
tiew6ight.  ^^^  £ggjj  -^^  particular  cases  are  not  entitled  to  great 
weio'ht.  This  is  peculiarly  the  case  in  testamentary  questions  in- 
volvino'  strong  family  feeling  and  large  pecuniary  interests.  In 
such  cases  each  party  is  led  to  seek,  among  the  large  number  of 
specialists  in  mental  diseases,  specialists  who  would,  from  their  pre- 
conceived view,  be  likely  to  sustain  his  case ;  and  as  there  is  no 
theory  of  insanity  that  has  not  an  expert  exponent,  no  case  of  sup- 


ed.),  note  D  to  chap.'  iii.,  vol.  i.  p.  104. 
The  following  cases  may  be  added  to 
those  in  the  note  referred  to  :  Davis  v. 
Davis,  123  Mass.  590  ;  Howard?;.  Moot, 
64  N.  Y.  447  ;  Egbert  v.  Egbert,  78 
Penu.  St.  326  ;  Grubbs  v.  McDonald,  91 
Penn.  St.  236  ;  Taylor  v.  Creswell,  45 
Md.  522  ;  Brown  ?;..Ward.  53  Md.  376  ; 
Rush  V.  Megee,  36  Ind.  69,  decide  that 
sanity  in  such  cases  is  to  be  presumed. 
Contra,  that  the  burden  is  on  the  pro- 
pounders,  Robinson  v.  Adams,  62  Me. 
369  ;  Riddell  v.  Johnson,  26  Gratt. 
152;  Evans  v.  Arnold,  52  Ga.  169; 
Wetter  v.  Habersham,  60  Ga.  193 ; 
Benoist  v.  Murrin,  58  Mo.  307  ;  Tate 
V.  Tate,  89  111.  42  ;  Martin  v.  Perkins, 
56   Miss.    204.     But  one   under  guar- 

34 


dianship  is  presumptively  incapable 
of  making  a  will.  Breed  v.  Pratt,  18 
Pick.  115  ;  Hamilton  v.  Hamilton,  10 
R.  1.  538.  And  the  burden  of  proof  is 
shifted  where  there  has  been  an  in- 
quisition or  general  derangement  has 
been  shown.  Halley  v.  Webster,  21 
Me.  461  ;  Clark  v.  Fisher,  1  Paige, 
171 ;  Jackson  v.  King,  4  Cowen,  207  ; 
Morrison  v.  Smith,  3  Bradf.  209 ;  Har- 
den-v.  Hays,  9  Penn.  St.  151  ;  Higgins 
V.  Carlton,  28  Md.  115  ;  Smith  v.  Smith, 
4  Baxt.  293  ;  Rush  v.  Megee,  36  Ind. 
69. 

1  Infra,  §  257. 

2  Infra,  §  261. 

s  Wh.  on  Ev.  §§  434  et  scq. 
<  Infra,  §  275. 


WILLS. 


[§  8J 


posed  insanity  can  be  brought  into  court  whicli  some  expert  cannot 
be  found  to  support  by  his  testimony  under  oath.  We  must  also 
take  into  consideration  the  bias  arising  from  the  relation  of  the 
professional  expert  to  his  employer.  The  opinions  of  feed  counsel 
as  to  law  would  not  be  regarded  as  binding  the  court,  no  matter 
how  high-toned  such  counsel  may  be ;  for  the  same  reason  the  opin- 
ions of  even  the  most  high-toned  of  experts,  when  employed  and 
feed  by  particular  parties  to  litigated  issues,  should  not  be  regarded 
as  binding  the  jury.^ 


■  See  infra,  §§  293  et  seq. 

Mr.  Shelford's  views  on  this  point 
are  worthy  of  grave  consideration. 
"One  person,"  he  says,  "seeing  a  tes-  • 
tator  in  extreme  age,  or  under  extreme 
sickness,  thinks  that  if  he  knows  tliose 
about  him,  and  can  answer  an  ordinary 
question  with  respect  to  the  state  of 
his  illness,  or  his  wants,  such  and  sim- 
ilar matters  render  him  capable  of  giv- 
ing effect  to  a  disposition  by  will,  how- 
ever complicated  it  may  be,  by  the 
mere  formal  execution  of  the  instru- 
ment ;  while  another  person  may  be  of 
opinion  that,  though  a  testator,  in  the 
ordinary  management  of  his  affairs, 
can  hold  reasonable  conversation,  can 
fully  comprehend  all  the  usual  and 
simple  transactions  of  life,  yet,  if  he  is 
unable  to  take  the  active  management 
of  all  his  concerns,  however  involved 
tliose  concerns  may  be,  or  if  he  is  lia- 
ble to  become  confused  by  entering  into 
intricate  transactions,  he  is  totally  in- 
capable, and  cannot  enter  into  a  testa- 
mentary disposition,  however  plain 
and  simple  it  may  be.  Now,  when 
opinions  are  formed  by  such  opposite 
standards,  it  is  obvious  much  contrari- 
ety will  occur.  Sir  John  NichoU  ob- 
served that  experience  in  the  ecclesi- 
astical court  teaches  us  that  evidence 
upon  questions  of  capacity  is  almost 
always  contradictory,  such  evidence 
being  commonly  that  of  opinion  mere- 


ly ;  and  this  contrariety  proceeds  from 
the  obvious  grounds  that,  of  the  wit- 
nesses, no  two,  possibly,  have  seen  the 
party  whose  estate  is  deposed  to,  at 
precisely  the  same  circumstances  ;  and 
that  each,  again,  of  the  several  wit- 
nesses, no  matter  how  numerous,  meas- 
ures, possibly,  testamentary  capacity 
by  his  own  particular  standard.  These 
sources  of  discrepancy,  and  many  more 
might  be  enumerated,  are  common  to 
all  cases  of  this  description.  There  is 
an  additional  source,  when  the  trans- 
action of  which  they  have  to  speak  is 
remote,  a  circumstance  sufficient  in  it- 
self to  account  for  no  inconsiderable 
degree  of  contrariety  of  evidence,  even 
where  the  witnesses  have  to  speak  of 
facts  merely,  and  not  of  opinions  formed 
and  inferences  built  upon  facts,  of 
which  most  of  the  evidence  furnished 
upon  questions  of  capacity  is  commonly 
made  up.  If  the  cpurt,  therefore,  on 
questions  of  capacity,  is  accustomed  to 
rely  but  little  upon  such  evidence,  so 
far  as  it  is  that  of  mere  opinion,  but  to 
form  its  own  j  udgment  from  the  facts 
and  the  conduct  of  the  parties  at  the 
time,  it  becomes  it  to  do  so,  more  pecu- 
liarly when  much  of  the  evidence  not 
merely  consists  of  opinions  delivered 
long  subsequently  to  the  transactions 
which  they  profess  to  have  suggested 
them,  upon  loose  recollections,  too,  and 
after  repeated  discussions  of  the  sub- 

35 


§  34.]         MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

II.   DELUSIONS. 

§  34.  Delusions,  as  viewed  psychologically,  will  be  considered  at 
large  in  a  subsequent  chapter.^  In  their  legal  relations, 
t*^ibef^°°^  so  far  as  concerns  testamentary  capacity,  they  were  the 
proved  by  subject  of  patient  investigation  by  Sir  J.  P.  Wilde  (Lord 
not  vice'  Penzance),  in"  the  court  of  probate  and  divorce,  in 
vejsa.  1867.^     A  delusion  is  "a  belief  of  facts  which  no  ra- 

tional person  would  have  believed;"  so  spoke  Sir  J.  Nicholls  ;  "  but 
who,"  asks  Sir  J.  P.  Wilde,  "  is  a  '  rational'  person  ?  and  does  not 
the  assumption  '  rational'  beg  the  question  at  issue  ?"  "  The  belief 
of  things  as  realities  which  exist  only  in  the  imagination  of  the 
patient ;"  so  said  Lord  Brougham  in  Waring  v.  Waring  ;  but  do 
not  sane  people  imagine  unrealities  ?  "A  pertinacious  adherence 
to  some  delusive  idea,  in  opposition  to  plain  evidence  of  its  falsity," 
said  Dr.  Willis,  as  quoted  by  Sir  J.  Nicholls ;  "  but  are  not  sane 
people  sometimes  pertinacious  in  error  ?  and  who  is  to  determine 
what  evidence  is  'plain?'"  Hence  it  is  that  Sir  J.  P.  Wilde, 
arguing  from  the  inadequacy  of  these  definitions,  concludes  that 
"delusions,"  as  insane  delusions,  are  to  be  proved  by  insanity,  not 
insanity  by  delusions.^ 

ject  matter  witli  interested  parties."  83  111.  62.     It  is  ruled  in  Indiana  that 

Shelford  on  Lunacy,  277-8.     See  Van-  it  is  wrong  to  direct  the  jury  as  to  the 

auken  ex  parte,  2  Stockt.  (N.  J.)  186.  weight  to  he  given  to  the  testimony  of 

Judge  Redfield,   in  commenting  upon  experts  ;  their  credibility  is  to  be  tested 

this  subject,  says  that  the  testimony  by  the  rules  applying  to  other  classes 

should   come    "  (1)    From   persons    of  of  witnesses.      Eggers    v.    Eggers,    57 

general  capacity,  skill,  and  experience  Ind.  461 ;    Cuneo  v.  Bessoni,  63  Ind. 

in  regard  to  the  whole  subject,  in  all  524. 

its  bearings  and  relations  ;  and  (2)  as  '  Infra,  §§  723-743.    As  to  delusions 

far  as  practicable,  from  those  persons  as  a  criminal  defence,  see  infra,  §  125. 

who  have  had  extensive  opportunity  2  Smith  v.  Tebbitt,  L.  R.  1  P.  &  D. 

to   observe  the   conduct,   habits,   and  398. 

mental  peculiarities  of  the  person  whose  ^  Here  may  be  noticed  the  language 

capacity  is  brought   in  question,   ex-  of  Sir  J.  Hannen  in  two  recent  cases 

tending  over  a  considerable  length  of  before  the  probate  court.    In  Boughton 

time,   and  reaching  back  to  a  period  v.  Knight   (1873,  L.  R.  3  P.  &  D.  64; 

anterior  to  the  date  of  the  malady."  see  supra,  §  26)  he  told  the  jury  that 

Wills,  4tli  ed.  *136,  137.      In  Illinois  in  one  sense  Sir  J.  Nicholls' phrase  was 

it  is  said  that  where  capacity  is  estab-  "  arguing  in  a  circle,  for,  in  fact,  it  is 

lished  aliunde,  medical  speculations  are  only  saying  that  a  man  is  not  rational 

of  little  weight.     Carpenter  u.  Calvert,  who  believes   what   no   rational  man 

36 


"WILLS. 


[§35. 


§  35.  In  most  of  our  American  states,  proof  of  insane  delusions 
is  insufficient  to  defeat  a  will,  unless  the  Avill  be  the  direct   •„.•!, 

'  _  VVill  void 

offspring  of  such  insane  delusions.     Where  the  delusion   when  the 
1  1  -n  •         •  1  1         T  result  of  in- 

thus  operates,  then  the  Avili  is  void.^    "  it  appears  to  me,      sane  deiu- 
says  Mr.  Justice  Sergeant,  in  delivering  an  opinion  of   ^^^^' 
the  supreme  court  of  Pennsylvania  in  1839,^  "  that  the  only  ques- 
tion in  such  a  case  is,  whether  the  person  was  of  sound  memory 


would  believe  ;  but  for  practical  pur- 
poses it  is  a  sufficient  definition  of  a 
delusion,  for  this  reason  —  that  you 
must  remember  that  the  tribunal  that 
is  to  determine  the  question  (whether 
judge  or  jury)  must,  of  necessity,  take 
his  own  mind  as  the  standard  where- 
by to  measure  the  degree  of  intellect 
possessed  by  another  man.  You  must 
not  arbitrarily  take  your  own  mind  as 
the  measure  .  .  .  but  you  must  of 
necessity  put  to  yourself  this  question, 
and  answer  it :  Can  I  understand  how 
any  man  in  possession  of  his  senses 
could  have  believed  such  and  such  a 
thing  ?  and  if  the  answer  you  give  is, 
I  cannot  understand  it,  then  it  is  of  the 
necessity  of  the  case  that  you  should 
say  the  man  is  not  sane."  Subse- 
quently, in  charging  the  jury  in  the 
case  of  Smee  v.  Smee  (1879)  L.  R.  5  P. 
D.  84,  he  said  (p.  90),  that  delusions 
are  "  ideas  which  you  cannot  conceive 
any  rational  man  to  entertain."  In 
reviewing  the  case  of  Boughton  v. 
Knight,  the  editors  of  the  Journal  of 
Mental  Science  say,  "  Sir  James 
Haniaen  .  .  .  says,  '  the  test  applied 
will  solve  most,  if  not  all,  the  difficul- 
ties which  arise  in  investigations  of 
this  kind.'  The  discovery  is  so  simple 
and  satisfactory  that  one  is  surprised 
the  world  should  not  have  hit  upon  it 
sooner.  The  test  whereby  to  deter- 
mine what  is  an  insane  delusion  is  not 
whether  it  is  of  a  kind  which  has  been 
observed  in  thousands  of  insane  per- 
sons, has  a  character  of  insanity  about 


it,  and  is  associated  with  mental  and 
physical  symptoms  which  mark  a  de- 
finite form  of  disease  running  through 
a  definite  course,  but  it  is  whether  each 
of  twelve  men,  who  have  been  gathered 
together  in  a  box  from  behind  their 
counters,  can  understand  how  any  man 
in  possession  of  his  senses  could  have 
believed  it."  Jour.  Ment.  Sc,  vol.  xix. 
p.  241. 

'  Robinson  v.  Adams,   62  Me.  369  ; 
Coit  V.  Patchen,  77  N.  Y.  533  ;  Bonard's 
Will,  16  Abb.  Pr.  N.  S.  128  ;  Thomp- 
son   V.   Quimby,  2  Bradf.  449  ;    S.   C. 
sub  nomine  Thompson  v.  Thompson,  21 
Barb.  107 ;    La   Bau   v.  Vanderbilt,  3 
Redf.   (N.  Y.)  384 ;  Lathrop  v.  Board 
of    Foreign   Missions,    67    Barb.    590 
Tawney  v.   Long,  76   Penn.   St.   106 
Lee   V.    Scudder,    31   N.   J.   Eq.    633 
Brown  v.  Ward,  53  Md.  376  ;  Gardner 
V.    Lamback,    47   Ga.    133 ;    Evans   v, 
Arnold,  52  Ga.  169  ;  Cotton  v.  Ulraer, 
45  Ala.  378  ;  Johnson  v.  Moore,  1  Litt. 
(Ky.)   371  ;   James   v.  Langdon,  7  B. 
Mon.    193 ;   Gass   v,  Gass,  3   Humph. 
278;   Benoist  v.  Murrin,  58  Mo.  307; 
Cole's  Will,  49  Wis.  179  ;    and  cases 
infra.     See  an  essay  by  Dr.  Ray  on  the 
"Angel  Will  Case,"  20  Am.  Journ.  of 
Insanity,  145  ;  and  see  also  Flanagan 
V.  Fenlayson,  18  ibid.  249.     See,  also, 
infra,  §§  723-743.    In  Indiana,  by  stat- 
ute, a  person   ' '  who  has  become  the 
victim  of  a  mental  derangement  in  any 
form"  is  incompetent  to  make  a  will. 
Eggers  V.  Eggers,  57  Ind.  461. 
2  Boyd  V.  Eby,  8  Watts,  66. 

37 


§  35.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

and  discretion,  considering  the  act  done  in  all  its  bearings,  and 
judging  of  the  soundness  of  the  mind  of  the  supposed  testator 
by  his  conduct  and  declarations  at  the  time,  and  as  connected  with 
his  previous  insanity,  and  the  degree  of  restoration  of  mind  in  the 
interval ;  and  that  if  the  erroneous  and  groundless  impressions  re- 
ceived during  the  time  of  his  delirium  shall  retain  their  hold  (whether 
by  some  physical  derangement  of  the  brain,  or  by  some  indelible 
stamp  on  the  thinking  faculties),  that  person  must  be  considered 
still  under  a  delusion — the  effect  continues,  and  it  is  only  by  effects 
we  can  judge  of  the  existence  of  the  exciting  cause — and  if  he  is 
under  a  delusion,  though  there  be  but  a  partial  insanity,  yet  if  it  he 
in  relation  to  the  act  in  question,  it  is  well  settled  it  will  invalidate 
contracts  generally^  and  defeat  a  will  which  is  the  direct  offspring 
of  this  partial  insanity  y^ 

The  converse  of  this  result,  depending,  however,  on  the  same 
principle,  is  illustrated  by  a  case  decided  by  Judge  King,  in  Phila- 
delphia, in  1851.  "  A  raonomaniacal  delusion,"  he  said,  "  invete- 
rately  entertained  by  a  testator  against  one  who  would  otherwise 
have  been  the  natural  object  of  his  bounty,  and  shown  to  be  the 
reason  which  has  excluded  him  from  it,  and  to  have  had  no  other 
existence  except  the  distempered  imagination  of  the  testator,  would 
invalidate  a  will  made  under  such  influence.  And  for  the  very  plain 
reason  that  a  will  made  under  the  suggestion  of  such  an  insane  de- 
lusion is  not,  what  the  law  requires  a  will  to  be,  the  product  of  a 
mind  capable  of  reasoning  rightly.  For  although  the  law  recog- 
nizes the  difference  between  general  and  partial  insanity,  yet  if  the 
will  has  been  made  under  the  influence  of  such  partial  insanity,  and 
as  the  product  of  it,  it  is  as  invalid  as  if  made  under  the  effects  of 
an  insanity  never  so  general.  Eccentricities  of  conduct,  absurd 
opinions,  or  belief  in  things  appearing  to  us  extravagant,  although 
they  may  be  and  are  evidences  of  testamentary  incapacity,  do  not 
constitute  it  necessarily  and  in  themselves.  A  man  may  believe  in 
witches  and  witchcraft,  as  it  seems  this  testator  did,  or,  like  him,  he 
may  have  believed  his  health  to  have  been  permanently  affected  by 
slow  poisons  surreptitiously  administered  to  him,  and  yet  be  compe- 
tent to  make  a  will,  where  such  will  is  not  shown  to  have  some  con- 
nection with  such  absurd  opinions  or  extravagant  belief,  and  where 

'  See  also  Crum  v.  Thornly,  47  111.  192. 

38 


WILLS.  [§  37. 

the  mind  is  shown  to  be  in  other  respects  sound  and  vigorous,  and 
the  judgment  intelligent  and  clear.  This  testator  was  upwards  of 
eighty-three  years  old  when  he  died,  and  consequently  received  his 
early  impressions  when  the  belief  in  witches  and  witchcraft  still 
lingered  among  persons  of  a  much  higher  social  position  and  of 
much  better  education  than  himself.  Colonial  America  either  in- 
herited from  the  mother  country,  or  received  from  the  emigration  of 
continental  Europe,  this  absurd  notion.  Pennsylvania  did  not  so 
far  escape  the  general  contagion  as  to  make  it  very  surprising  that 
a  man  in  the  condition  of  life  occupied  by  the  testator,  born  before 
the  American  Revolution,  should  have  participated  in  it."^ 

§  36.  A  belief  in  witchcraft,  it  has  been  ruled  in  Indiana  and 
Mississippi,  does  not  divest  testamentary  capacity,^  and 
a  will  on  its  face  rational  has  been  sustained,  although    d^iuslof  ^ 
the  testator  believed  in  mesmerism,  clairvoyance,  masic,    ?^^  general 

.  insanity. 

and  occasional  diabolic  visitation.^  So,  in  Connecticut, 
in  1850,  after  a  very  careful  review  of  the  authorities,  including 
Waring  v.  Waring,  it  was  ruled  "  that  the  notion  that  a  single  delu- 
sion is  general  insanity,  and  that  the  jury  are  to  be  so  instructed, 
irrespective  of  the  degree  or  intensity  of  it,  is  nowhere  counte- 
nanced in  this  country,  and  not  until  lately  in  England."  In  this 
case  the  court  below  had  refused  to  instruct  the  jury  "  that,  if  the 
testatrix  harbored  a  delusion,  she  was  while  harboring  such  delusion 
of  unsound  mind,  and  her  will  made  at  such  a  time  would  be  void." 
Judge  Ellsworth,  who  delivered  the  opinion  of  the  supreme  court, 
held  that  the  judge  was  right  in  refusing  to  instruct  the  jury  as 
requested.  He  discusses  this  question  at  great  length,  and  his 
conclusion  is:  "That  if  the  testatrix  had  mind  enough  to  know  and 
appreciate  her  relations  to  the  natural  objects  of  her  bounty,  and 
the  character  and  effect  of  the  dispositions  of  her  will,  then  she  had 
a  sound  and  disposing  mind  and  memory,  although  her  mind  may 
not  be  entirely  unimpaired."^ 

§  37.  So,  on  an  appeal  in  the  New  Hampshire  supreme  court 
from  the  probate  court,  where  the    issue  was  whether  a  certain 

•  Leech  w.  Leech,  4  Am.  L.J.  N.S.  179.         ^  Thompson  i;.   Thompson,   21   Bar- 

2  Addington  ti.  Wilson,  5  Ind.   137;  hour,    107;    S.    C.    nom.   Thompson  v. 

Kelly  V.  Miller,  39  Miss.  19.     See  Lee  Quimby,  2  Bradf.  449. 

V.  Lee,  4  McCord,  183.  *  Dunham's  Appeal,  27  Conn.  192. 

39 


§  38.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

Nor  does  testator  was  of  sane  mind  at  the  time  of  executing  her 
sanity"  in-  "^i^^?  ^^'i  ^^  appeared  that  the  judge  in  the  court  below 
capacitate.  1^q\^  that  "  mere  moral  insanity,  disorder  of  the  moral 
affections  and  propensities,  will  not,  unless  accompanied  by  in- 
sane delusions,  be  sufficient  to  invalidate  a  will  or  to  incapacitate 
a  person  to  make  one;"  also  "if  the  Avill  and  its  provisions  were 
not  in  any  way  the  offspring  or  the  result  of  the  delusion,  and  were 
not  connected  with  or  influenced  by  it,  then  she  was  of  sane  mind  to 
make  the  will ;"  and  exceptions  were  taken  to  these  instructions ; 
Sargent,  J.,  in  the  supreme  court,  said,  "  The  instructions  were 
correct  as  being  in  accordance  Avith  the  great  weight  of  authority, 
ancient  and  modern,  English  and  American,  medical  and  legal. "^ 
§  38.  In  a  trial  before  Judge  Grier,  in  the  circuit  court  of  the 
United  States,  in  Philadelphia,  in  1855,^  it  was  in  evi- 

Eccentrlci- 

ties  are  not    dence,  "that  the  testator  Avas  of  strong  mind,  but  very 

eccentric,  obstinate,  and  opinionated  ;  but  no  witness," 
to  follow  Judge  Grier's  charge  to  the  jury,  "  has  shown  facts  from 
which  a  sound  and  disposing  mind  and  memory  could  be  inferred. 
His  mind  was  greatly  excited  on  a  particular  subject — his  park 
property — he  was  very  stingy,  and  set  a  high  value  on  his  rights 
of  property.  But  it  is  no  evidence  of  any  mental  delusion  that  he 
thought  this  seizure  of  his  property  without  his  consent  a  high- 
handed exercise  of  power,  etc.  That  it  became  his  hobby,  made 
him  very  troublesome,  and  a  bore  to  all  his  acquaintances  and 
friends,  is  of  no  importance  at  all,  in  the  matter  trying  before  you, 
if  he  retained  his  memory  and  his  usual  shrewdness  in  the  manage- 
ment of  all  his  other  concerns.  Many  a  man  has  some  hobby,  and 
may  ride  it  very  much  to  the  annoyance  of  others,  and  yet  be  per- 
fectly capable  of  managing  his  own  affairs  and  disposing  of  his 
property  by  deed  or  will.  He  may  believe  in  spiritualism,  the 
Book  of  Mormon,  Fourierism,  or  any  other  of  the  absurdities  of  the 
day,  which  infest  the  trains  of  fanatics.  He  may  talk  very  much 
like  a  fool,  as  you  or  I  may  think,  on  these  subjects,  and  unduly 
magnify  their  importance.  He  may  profess  an  absurd  fondness  for 
music,  and  play  the  Pandean  pipes,  behave  like  a  fool  occasionally; 
may  tell  his  dreams  and  call  them  visions,  and  may  believe  in  them ; 

•  Boardman  v.  Woodman,  47  N.  H.         «  Turner  v.  Hand,  3  WalL  Jr.  88  at 
120.  p.  120. 

40 


WILLS.  [§  40. 

he  may  be  addicted  to  telling  lies  about  his  will ;  yet,  gentlemen, 
we  could  not  on  these  accounts  pronounce  him  unfit  to  manage  his 
affairs  or  dispose  of  his  property  in  his  lifetime  ;  and  could  not 
avoid  his  deeds,  nor  condemn  him  to  a  lunatic  hospital  as  a  fit 
tenant  for  such  an  institution." 

§  39.  On  the  other  hand,  a  delusion  by  a  testator  that  his  neph- 
ews, being  his  heirs-at-law,  were  conspiring  to  take  his  life,  and  that 
one  of  them  had  caused  his  death  by  putting  him  in  a  stove,  coupled 
with  other  collateral  delusions,  invalidates  a  will  which  Avas  its  pro- 
duct.^ In  his  opinion  in  the  court  of  errors,  Denio,  C.  J.,  said: 
"  On  questions  of  testamentary  capacity,  courts  should  be  careful 
not  to  confound  perverse  opinions  and  unreasonable  prejudices  with 
mental  alienation.  These  qualities  may  exist  in  any  mind,  even  to 
a  high  degree,  and  yet,  so  far  as  the  vieAV  which  the  law  takes  of 
the  case,  the  subject  may  be  sane  and  competent  to  perform  a  legal 
act,  and  to  be  held  responsible  for  a  crime.  Setting  aside  cases  of 
dementia,  or  loss  of  mind  and  intellect,  the  true  test  of  insanity  is 
mental  delusion.^^  A  person  may  be  insane  on  some  subjects, 
though  on  others  he  may  reason,  act,  and  speak  like  a  sensible 
man.  2 

§  40.  So,  where  a  testator,  during  an  attack  of  insanity,  conceived 
a  violent  and  o-roundless  prejudice  against  his  oldest  son, 

,  .   1  .     ,.  •       i       n         ^  •  Unless  the 

which  prejudice  he  retained  after   his  apparent  conva-    result  of 

lescence,  a  will,  disinheriting  his  son,  which  he  executed   ^^'''^^  ^■ 

at  the  latter  period,  was  ruled  by  the  supreme  court  of  Georgia  to 

be  invalid.^     But,  unless  the  prejudice  be  proved  to  be  insane,  in 

other  words,  in  cases  where  it  is  the  conclusion  of  a  reasoning  mind, 

on  any  evidence,  no  matter  how  slight,  its  indulgence  will  not  over. 

turn  a  will.     Thus  no  such  disabling  effect  was  assigned  to  a  notion 

by  the  testator,  on  slight  but  insufficient  evidence,  that  a  daughter 

was  illegitimate,  this  notion  causing  her  disinheritance,^  nor  will 

'  Am.  Seaman's  Friend  Soc.  v.  Hop-  en,  77  N.  Y.  533  ;  Stackhouse  v.  Horton, 

per,  43  Barb.  625.  15  N.  J.  Eq.  202  ;  Evans  v.  Arnold,  52 

2  Seamen's  Friend  Soc.  v.  Hopper,  33  Ga.  169  ;  Florey  v.  Florey,  24  Ala.  241  ; 
N.  Y.  619.  Cotton  v.  Ulmer,  45  Ala.  378  ;   Cole's 

3  Lucas  V.  Parsons,  24  Ga.  640 ;  see  Will,  49  Wis.  179. 

White  y.Wilson,  13Ves.  Jr.  87  ;  Jenckes         <  Clapp  v.  Fullerton,  34  N.  Y.  190  ; 
V.  Smithfield,  2  R.  I.  255  ;  Stanton  v.     see  Cole's  Will,  49  Wis.  179. 
Wetherwax,  16  Barb.  259;  Coit  v.  Patch- 

41 


§  41.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

capacity  be  considered  as  destroyed  by  any  delusion  not  actually 
insane.^ 

§  41.  The  English  rule  was  for  a  long  time  considered  settled 

on  the  same  basis,  and  was  set  forth  with  great  fulness 
Ene^iand  ^J  ^^^^  prerogative  court,  during  Sir  J.  Nicholls'  presi- 
^h'^^T^i'^  dency.^  The  question  there  was  as  to  the  testamentary 
sions  must  capacity  of  a  gentleman  named  Stott,  an  eminent  electri- 
tum  ofwUi  cian,  who  had  an  only  child,  against  whom  he  had,  with- 
citate^^^'      out  cause,  imbibed  an  uncontrollable  disgust  and  aversion, 

which  manifested  itself  in  acts  of  great  cruelty  and  oppres- 
sion, and  ultimately  in  a  will  by  which  she  was  cut  off  in  favor  of 
collateral  relations.  Sir  J.  Nicholls  pronounced  against  the  will,  in 
an  opinion  distinguished  for  its  elaborate  fulness  as  well  as  for  its 
judicial  strength.  "  It  has  been  said  repeatedly  by  the  counsel  for 
the  residuary  legatees,"  so  he  argues  at  the  outset,  "that  this  '  par- 
tial insanity'  is  a  something  unknown  to  the  law  of  England.  Now, 
if  it  be  meant  by  this,  that  the  law  of  England  never  deems  a  per- 
son both  sane  and  insane  at  one  and  the  same  time,  upon  one  and 
the  same  subject,  the  assertion  is  a  mere  truism  (as  well,  indeed,  in 
reason  as  in  law),  and  as  such  is  incapable  of  being  effectively  op- 
posed. At  the  same  time,  as  no  such  sort  of  partial  insanity  is  set 
up  by  the  daughter,  the  case  of  partial  insanity  which  she  has  really 
undertaken  to  sustain  is  at  no  risk  from  the  truth  of  that  position, 
so  understood,  being  conceded.  But  if,  by  that  position,  it  be 
meant,  and  intended,  that  the  law  of  England  never  deems  a  party 
both  sane  and  insane  at  different  times,  upon  the  same  subject ;  and 
both  sane  and  insane  at  the  same  time  upon  cliff ei^ent  subjects — (the 
most  usual  sense,  this  last,  of  the  phrase  '■partial  insaniti/,'  and  the 
one  in  which  I  take  it  to  have  been  used  throughout,  by  the  counsel 
for  the  next  of  kin),  there  can  scarcely  be  a  position  more  destitute 
of  legal  foundation ;  or  rather,  there  can  scarcely  be  one  more  ad- 
verse to  the  streams  and  current  of  legal  authority."  The  learned 
judge  sustains  himself  by  the  authority  of  Locke,  who  says:  "A 
man  who  is  very  sober,  and  of  a  right  understanding  in  all  other 
things,  may  in  one  particular  be  as  frantic  as  any  man  in  Bedlam;" 
and  of  Lord  Hale,  who  expressly  declares  "there  is  a  partial  in- 

•  Hall  V.  Hall,  38  Ala.  131 ;  Hall  v.         2  Dew  v.  Clark,  3  Add.  79  ;  see   1 
Unger,  2  Abbott  (U.  S.)  507  ;  affirmed,     Ibid.  279  ;  2  Ibid.  102. 
Dexter  v.  Hall,  15  Wall.  9. 

42 


WILLS.  [§  41. 

sanity  of  mind,  and  a  total  insanity.  The  former  is  either  in  re- 
spect to  things  [^quoad  hoc,  vel  quoad  illud  insanire — some  persons 
that  have  a  competent  use  of  reason  in  respect  to  some  subjects,  are 
yet  under  a  particular  dementia  in  respect  of  some  particular  dis- 
courses, subjects,  or  applications],  or  else  it  is  partial  in  respect  of 
degrees ;  and  this  is  the  condition  with  very  many,  especially  mel- 
ancholy persons,  who,  for  the  most  part,  discover  their  defect  in 
excessive  fears  and  grief,"  and  yet  are  not  wholly  destitute  of  the 
use  of  reason.  He  concludes  as  follows:  "The  deceased's  state  of 
mind  at  the  time  of  making  his  will  is  intimately,  I  think,  connected 
with  his  state  of  mind  on  the  subject  matter  of  his  will — understand- 
ing by  this  the  disposal,  by  will,  of  his  property.  If  the  deceased 
were  at  all  times  of  unsound  mind  on  the  subject  matter  of  his  will, 
he  must  have  been  of  unsound  mind  at  the  time  of  making  his  will. 
To  suppose  the  contrary  would  be  to  suppose  the  deceased  both 
sane  and  insane  at  the  same  time  and  on  the  mme  subject;  a  sup- 
position, I  apprehend,  equally  absurd  in  a  legal  and  moral  point  of 
view.  And,  subject  to  these  considerations,  the  question  in  the  end 
to  be  determined — the  point  at  final  issue — is  not  whether  the  de- 
ceased's insanity  in  certain  other  particulars,  as  proved  by  the  daugh- 
ter, should  have  the  effect  of  defeating  a  will,  generally^  of  the  de- 
ceased, or  even  this  identical  will,  but  it  is  whether  his  insanity,  on 
the  subject  of  his  daughter,  as  also  proved  by  the  daughter,  should 
have  the  effect  of  defeating,  not  so  much  any  will  {a  will  generally^ 
of  the  deceased,  as  this  identical  will ;  and  to  the  decision  of  that 
question  I  am  to  be  understood  as  solely  addressing  myself  in  the 
following  observations: — 

"Now,  the  daughter  beinor  in  this  case  the  sole  next  of  kin,  the 
deceased's  only  child,  it  is  quite  impossible,  I  think,  to  disconnect 
the  daughter  from  the  subject  matter  of  his  will — that  is,  of  his 
property;  they  are  subjects,  in  effect,  identified.  Hence,  the  de- 
ceased's insanity  on  the  subject  of  his  daughter,  generally  speak- 
ing, being  proved  at  all  times  in  my  judgment,  it  follows  that  his 
insanity,  at  the  time  of  making  his  will,  is  also  proved,  in  my  judg- 
ment, unless  the  contrary  is  to  be  inferred  from  the  will  itself. 
But  the  inference  furnished  by  the  will  itself  (and  it  is  for  this  only 
that  I  refer  to  the  disposative  part — to  the  contents  of  the  will  at 
all)  is  quite  the  other  way.  For  the  prominent  feature  of  the  de- 
ceased's insanity,  in  respect  to  the  daughter,  was  aversion  or  an- 

43 


§  42.]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

tipathy  to  the  daughter,  so  pleaded  and  so  proved ;  and  the  will  is 
a  will  plainly  inofficious,  so  far  as  regards  the  daughter,  being  a 
will  by  which  she  is,  in  effect,  disinherited — disinherited,  too,  in 
favor  of  parties  nearly  utter  strangers  to  the  deceased  (for  so  it 
appears),  though  not  remotely  connected  with  him  by  blood,  being 
his  sister's  children.  Therefore  it  follows  that,  in  my  judgment, 
the  deceased  is  proved,  upon  the  whole  matter,  to  have  been  insane 
at  the  time  of  his  making  this  will:  which  was  the  daughter's  case. 
.  .  .  Had  the  contents  of  the  will  furnished  a  contrary  inference 
— had  the  will,  so  far  as  respects  the  daughter,  been  in  all  parts  of 
it  an  officious  will,  the  conclusion  on  this  head,  and  so  upon  the 
whole  case,  might  have  been  different;  the  very  contents  of  the  will 
would  in  that  case  have  inferred  that,  however  partially  insane  (in- 
sane on  the  subject  of  his  daughter)  the  deceased  might  have  been, 
generally  speaking,  still,  that  such  partial  insanity  was  not  in  ac-* 
tual  operation  at  the  time  of  his  making  the  will,  in  which  respect 
the  will  might  have  been  valid.  "^ 

§  42.  It  is  true,  that,  when  in  the  same  case  a  bill  of  review  was 
applied  for  to  Lord  Chancellor  Lyndhurst,  he  limited 
only  par-  with  evident  caution  his  approval  of  the  judgment  of  Sir 
proved  by  ^'  ^icholls  in  such  a  way  as  to  reserve  the  question  of 
LordLynd-  partial  insanity,  as  above  stated.  "I  have  read  his  judg- 
ment," he  says,^  "with  great  attention;  and  I  collect 
from  it  that  his  meaning  is  this :  that  there  must  be  unsoundness  of 
mind  to  invalidate  a  Avill,  but  that  the  unsoundness  may  be  evidenced 
in  reference  to  one  or  more  subjects.  All  that  the  learned  judge 
meant  to  convey  was,  that  it  was  no  objection  to  the  imputation  of 
unsoundness,  that  it  manifested  itself  only  or  principally  with  refer- 
ence to  one  particular  question,  or  one  particular  person." 

'  A  man  moved  by  capricious,  frivo-  exhibits  to  bis  cbildren  must  be  held 
lous,  mean,  or  even  bad  motives,  may  to  proceed  from  some  mental  defect, 
disinherit  wholly  or  partially  his  chil-  If  such  repulsion,  amounting  to  delu- 
dren,  and  leave  his  property  to  stran-  sion  as  to  character  be  shown,  the  bur- 
gers. He  may  take  an  unduly  harsh  deu  will  be  cast  on  those  propounding 
view  of  the  character  and  conduct  of  the  will.  Boughton  v.  Knight,  L.  R.  3 
his  children  ;  but  there  is  a  limit  be-  P.  &  D.  64.  The  American  cases  do 
yond  which  it  will  cease  to  be  a  ques-  not  go  to  this  extent.  See  cases  cited 
tion  of  harsh,  unreasonable  judgment,  supra,  §  40. 
and  then  the  repulsion  which  a  parent        ^  j)Qy^  y.  Clarke,  5  Russ.  Ch.  C.  163. 

44 


WILLS.  ,  [§  43. 

§  43.  But  in  1848,  In  a  very  remarkable  case  before  tlie  privy 
council,  an  opinion  was  delivered,  without  dissent,  by 
Lord  Brougham,  as  the  judgment  of  himself,  Lord  Lang-   gentedfrom 
dale.  Dr.  Lushington,  and  Mr.  T.  Pemberton  Leigh,  in   ^  ^'^^^ 

.  ....  .  Brous^ham, 

which  the  notion  of  partial  insanity  on  one  point,  as  con-  Waring  v. 
sistent  with  testamentary  capacity,  was  explicitly  repu- 
diated.^ It  is  true  that  the  case  was  one  in  which  the  same  result 
could  have  been  reached  even  on  Sir  J.  Nicholls'  reasoning.  The 
testatrix,  who  was  advanced  in  years,  was  excessively  penurious 
and  eccentric,  was  extremely  irritable,  wrangled  with  her  servants 
to  an  excess,  at  times  indulged  in  very  obscene  conversation, 
believed  herself  the  object  of  various  amorous  enterprises,  and 
among  others  from  Lord  Melbourne,  and  Lord  J.  Russel,  who  she 
believed  prowled  about  the  house  as  fishwomen.  All  this,  and 
more,  on  Sir  J.  Nicholls'  hypothesis,  might  have  been  consistent 
with  a  testamentary  capacity.  But,  in  addition  to  this,  it  was 
shown  that  the  testatrix  had  an  insane  delusion  that  her  brother, 
whom  she  disinherited,  had  joined  the  Catholics,  to  whom  she  had 
an  aversion,  and  haunted  her  house,  also  in  disguise.  Certainly, 
even  on  the  theory  of  partial  insanity,  this,  coupled  as  it  was  with 
an  inquisition  of  lunacy,  would  have  been  enough  to  vacate  the  will. 
But  Lord  Brougham,  in  delivering  the  judgment  of  the  privy 
council,  went  further.  ''  The  question  being,"  he  said,  "  whether 
the  will  was  duly  made  by  a  person  of  sound  mind  or  not,  our 
inquiry,  of  course,  is,  whether  or  not  the  party  possessed  his  facul- 
ties, and  possessed  them  in  a  healthful  state.  His  mental  powers 
may  be  still  subsisting,  no  disease  may  have  taken  them  away,  and 
yet  they  may  have  been  affected  with  disease,  and  thus  may  not 
have  entitled  their  possessor  to  the  appellation  of  a  person  whose 
mind  was  sound. 

"  Again,  the  disease  affecting  them  may  have  been  more  or  less 
general ;  it  may  have  extended  over  a  greater  or  less  portion  of  the 
understanding,  or,  rather,  we  ought  to  say,  that  it  may  have 
affected  more  or  it  may  have  affected  fewer  of  the  mental  faculties. 
For  we  must  keep  always  in  view  that  which  the  inaccuracy  of 
ordinary  language  inclines  us  to  forget,  that  the  mind  is  one  and 
indivisible  ;  that  when  we  speak  ofits  different  powers  or  faculties, 

»  Waring  v.  Waring,  6  Moore  P.  C.  C.  341  at  p.  349. 

45 


§  43,]  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

as  memory,  consciousness,  we  speak  metaphorically,  likening  the 
mind  to  the  body,  as  if  it  had  members  or  compartments,  whereas, 
in  all  accuracy  of  speech,  Ave  mean  to  speak  of  the  mind  acting 
variously,  that  is,  remembering,  fancying,  reflecting,  the  same  mind 
in  ail  these  operations  being  the  agent.  We,  therefore,  cannot  in 
any  correctness  of  language  speak  of  general  or  partial  insanity  ; 
but  we  may  most  accurately  speak  of  the  mind  exerting  itself  in 
consciousness  without  cloud  or  imperfection,  but  being  morbid  when 
it  fancies  ;  and  so  its  owner  may  have  a  diseased  imagination,  or  the 
imagination  may  not  be  diseased,  and  yet  the  memory  may  be  im- 
paired, and  the  owner  be  said  to  have  lost  his  memory.  In  these 
cas€s  we  do  not  mean  that  the  mind  has  one  faculty,  as  conscious- 
ness, sound,  while  another,  as  memory  or  imagination,  is  diseased ; 
but  that  the  mind  is  sound  when  reflecting  on  its  own  operations, 
and  diseased  when  exercising  the  combination  termed  imaginary,  or 
casting  the  retrospect  called  recollecting. 

"  This  view  of  the  subject,  though  apparently  simple,  and  almost 
too  unquestionable  to  require  or  even  to  justify  a  formal  statement, 
is  of  considerable  importance  when  we  come  to  examine  cases  of 
what  are  called,  incorrectly,  '  partial  insanity,'  which  would  be 
better  described  by  the  phrase  '  insanity,'  or '  unsoundness,'  always 
existing,  though  only  occasionally  manifest, 

"  Nothing  is  more  certain  than  the  existence  of  mental  disease  of 
this  description.  Nay,  by  far  the  greater  number  of  morbid  cases 
belongs  to  this  class.  They  have  acquired  a  name — the  disease 
called  familiarly,  as  well  as  by  physicians,  '  monomania,'  on  the 
supposition  of  its  being  confined,  which  it  rarely  is,  to  a  single 
faculty  or  exercise  of  the  mind  ;  a  person  shall  be  of  sound  mind,  to 
all  appearance,  upon  all  subjects  save  one  or  two,  and  on  these  he 
shall  be  subject  to  delusions — mistaking  for  realities  the  sugges- 
tions of  his  imagination.  The  disease  here  is  said  to  be  in  the 
imagination  ;  that  is,  the  patient's  mind  is  morbid  or  unsound 
when  it  imagines ;  healthy  and  sound  when  it  remembers.  Nay, 
he  may  be  of  unsound  mind  when  his  imagination  is  employed  on 
some  subjects,  in  making  some  combinations,  and  sound  when  making 
others,  or  making  one  single  kind  of  combination.  Thus  he  may 
not  believe  all  his  fancies  to  be  realities,  but  only  some  or  one.  Of 
such  a  person  we  usually  predicate  that  he  is  of  unsound  mind  only 
upon  certain  points.  I  have  qualified  the  proposition  thus  on  pur- 
46 


■WILLS.  [§  43. 

pose ;  because,  if  the  being  or  essence  which  we  term  the  mind  is 
unsound  on  one  subject,  provided  that  unsoundness  is  at  all  times 
existing  on  that  subject,  it  is  quite  erroneous  to  suppose  such  a  mind 
really  sound  on  other  subjects.  It  is  only  sound  in  appearance ; 
for  if  the  subject  of  the  delusion  be  presented  to  it,  the  unsoundness 
which  is  manifested  by  believing  in  the  suggestions  of  fancy,  as  if 
they  were  realities,  would  break  out ;  consequently,  it  is  absurd  to 
speak  of  this  as  a  really  sound  mind  (a  mind  sound  when  the  sub- 
ject of  the  delusion  is  not  presented),  as  it  would  be  to  say  that  a 
person  had  not  the  gout,  because,  his  attention  being  diverted  from 
the  pain  by  some  more  powerful  sensation  by  which  the  person  was 
affected,  he,  for  the  moment,  was  unconscious  of  his  visitation.  It 
follows,  from  hence,  that  no  confidence  can  be  placed  in  the  acts,  or 
in  any  act,  of  a  diseased  mind,  however  apparently  rational  that  act 
may  appear  to  be,  or  may  in  reality  be.  The  act  in  question  may 
be  exactly  such  as  a  person  without  mental  infirmity  might  well  do. 
But  there  is  this  difference  between  the  two  cases ;  the  person  uni- 
formly and  always  of  sound  mind  could  not,  at  the  moment  of  the 
act  done,  be  the  prey  of  morbid  delusion,  whatever  subject  was  pre- 
sented to  his  mind ;  Avhereas,  the  person  called  partially  insane — 
that  is  to  say,  sometimes  appearing  to  be  of  sound  and  sometimes  of 
unsound  mind — would  inevitably  show  his  subjection  to  the  disease 
the  instant  the  topic  was  suggested.  Therefore,  we  can,  with  per- 
fect confidence,  rely  on  the  act  done  by  the  former,  because  we  are 
sure  that  no  lurking  insanity — no  particular,  or  partial,  or  occa- 
sional delusion — does  mingle  itself  with  the  person's  act  and  mate- 
rially affect  it.  But  we  never  can  rely  on  the  act,  however  rational 
in  appearance,  done  by  the  latter,  because  we  have  no  security  that 
the  lurking  delusion,  the  real  unsoundness,  does  not  mingle  itself 
with  or  occasion  the  act.  We  are  wrong  in  speaking  of  partial  un- 
soundness ;  we  are  less  incorrect  in  speaking  of  occasional  unsound- 
ness ;  we  should  say  that  the  unsoundness  always  exists,  but  it 
requires  a  reference  to  the  peculiar  topic,  else  it  lurks  and  appears 
not.  But  the  malady  is  there,  and,  as  the  mind  is  one  and  the 
same,  it  is  really  diseased,  Avhile  apparently  sound ;  and  really  its 
acts,  whatever  appearance  they  may  put  on,  are  only  the  acts  of  a 
morbid  or  unsound  mind.  Unless  this  reasoning  be  well  founded, 
we  cannot  account  for  the  unanimity  with  which  men  have  always 
agreed  in  regarding  as  the  acts  of  an  insane  mind  those  acts,  to  all 

47 


§  43.]         MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 

appearance  rational,  which  a  person  does  who  labors  under  delu- 
sions of  a  plainly  extravagant  nature,  though  there  is  nothing  in  the 
act  done,  and  nothing  in  the  conduct  of  the  party  while  doing  it,  at 
all  connected  with  the  morbid  fancies.  If  these  fancies  only  affect 
the  party  now  and  then,  if  for  some  months  he  is  free  from  them — 
laboring  under  them  at  other  times,  then  his  acts  apparently  rational 
would  not  be  regarded  as  those  of  a  person  mentally  diseased.  But 
if  Ave  were  convinced  that  at  the  time  of  doing  the  acts  the  delusion 
continued,  and  was  only  latent  by  reason  of  the  mind  not  having 
been  pointed  to  its  subject,  and  would  have  instantly  shown  itself 
had  that  subject  been  presented,  then  the  act  is  at  once  regarded  as 
that  of  a  madman.  Thus  there  have  been  many  cases  of  persons 
laboring  under  the  delusion  that  they  were  other  than  themselves  ; 
have  believed  themselves  deceased  emperors  or  conquerors ;  others, 
supernatural  beings.  Suppose  one  who  believed  himself  the  em- 
peror of  G-ermany,  and  on  all  other  subjects  was  apparently  of  sound 
mind,  did  any  act  requiring  mind,  memory,  and  understanding. 
Suppose  he  made  his  will,  and  either  did  not  sign  it  (before  signing 
was  required),  or,  if  he  did,  signed  it  with  his  own  name  ;  but  sup- 
pose we  were  quite  convinced  that,  had  any  one  sjDoken  on  the  Ger- 
man Diet,  or  proceeded  to  abuse  the  German  emperor,  the  testator's 
delusion  would  at  once  break  forth,  then  we  must  at  once  pronounce 
the  will  void,  be  it  as  officious  and  as  rational,  in  every  respect,  as 
any  disposition  of  property  could  be.  Of  course,  no  one  could  pro- 
pound such  a  will  with  any  hopes  of  probate,  if  it  happened  that 
while  making  it  the  delusion  had  broken  out,  even  although  the 
instrument  bore  no  marks  of  its  existence  at  the  time  of  its  concoc- 
tion. It  must  always  be  a  question  of  evidence,  on  the  whole  facts 
and  circumstances  of  the  case,  whether  or  not  the  morbid  delusion 
existed  at  the  time  of  the  factum  ;  that  is,  whether,  had  the  subject 
of  it  been  presented,  the  cord  been  struck,  there  would  have  arisen 
the  insane  discord  which  is  absent,  to  all  outward  appearance,  from 
the  cord  not  having  been  struck.  The  principles  which  have  been 
laid  down  do  not  at  all  differ  from  those  on  which  the  courts  have 
acted,  which  text  writers  have  construed,  and  which  scientific  men, 
both  moralists  and  physicians,  have  approved.  In  the  well-known 
case  of  Dew  v.  Clark,  reported  3  Addams,  97,  buT;  also  reported, 
with  the  great  advantage  of  the  learned  judge's  corrections,  and 
published  separately  by  Dr.  Haggard,  we  find  Sir  John  Nicholl 
48 


WILLS.  [§  44. 

stating  that  mere  eccentricity  is  not  enough  to  constitute  mental 
unsoundness,  nor  great  caprice,  nor  violence  of  temper,  but  that 
there  must  be  an  aberration  of  reason ;  and  he  adopts  a  definition 
of  delusion  given  by  the  learned  counsel  in  the  cause  (now  a  mem- 
ber of  this  court),  deeming  it  well  described  by  the  expression  that 
'  it  is  a  belief  of  facts  which  no  rational  person  would  have  believed.' 
Perhaps,  in  a  strictly  logical  view,  this  definition  is  liable  to  one 
exception,  or,  at  least,  exposed  to  one  criticism,  namely,  that  it 
gives  a  consequence  for  a  definition ;  and  it  may  be  more  strictly 
accurate  to  term  '  delusion'  the  belief  of  things  as  realities  which 
exist  only  in  the  imagination  of  the  patient.  The  frame  or  state  of 
mind  which  indicates  his  incapacity  to  struggle  against  such  an  erro- 
neous belief,  constitutes  an  unsound  mind.  Sir  John  NichoU  justly 
adds  that  such  delusions  are  generally  attended  with  eccentricities, 
often  with  violence,  very  often   with   exaggerated   suspicions  and 

jealousies The  existence  of  delusions  being  proved,  and 

their  continuance  proved  or  assumed,  at  the  date  of  the  factum^  so 
that  the  court  is  satisfied  of  the  testatrix  then  laboring  under  their 
influence,  it  is  wholly  immaterial  that  they  do  not  appear  in  the  will 
itself.  The  party  propounding  often  approached  this  point  in  argu- 
ment, and  repeatedly  adverted  to  the  fact — perhaps  we  should  say 
the  assertion  or  assumption — that  this  will  betrays  no  marks  of  the 
alleged  delusions,  or  generally  of  an  unsound  mind.  There  was  a 
manifest  disposition  to  lay  down  a  rule  that  no  person  laboring  under 
monomania,  or  partial  insanity,  can  be  deemed  intestable,  unless 
the  kind  of  insanity  appears  on  the  face  of  the  will.  But  there  was 
wanting  the  courage  to  lay  down  a  proposition  which  would  at  once 
have  been  rejected,  and  must  have  been  met  with  the  question, 
Could  any  court  admit  to  probate  the  will  of  the  man  who  said  (in 
the  case  cited  by  Sir  John  Nicholl  in  Dew  v.  Clark),  'I  am  the 
Christ,'  although  that  will  bore  no  marks  whatever  of  an  unsound 
mind,  still  less  of  the  dreadful  delusion  under  which  the  party  la- 
bored ?" 

§  44.  So  far,  indeed,  has  this  doctrine   been   pushed  that  an 
extravagant  and  absurd  passion  for  pets  has  been,  in 
England,  regarded  as  proof  of  incapacity.     In  one  case    pushed  to 
this  rule  Avas  applied  to  an  unmarried  woman  who  kept,   *^^  ^^' 
in  kennels  in  her  drawing-room,  fourteen  dogs,  of  both 
VOL.  I. — 4  49 


§  45. "1        MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

sexes  ;^  and  to  another,  who  kept  in  her  house  a  great  multitude  of 
cats,  which  were  provided  with  regular  meals,  and  were  furnished 
with  plates  and  napkins.^  But  are  such  extravagances  necessarily 
proofs  of  insanity  ?  May  they  not  be  sometimes  marks  simply  of 
the  desire  to  produce  a  sensation,  such  as  that  which  led  to  the  dog 
tea-parties  which  some  years  ago  were  got  up  as  new  excitements 
by  the  leaders  of  fashion  in  Rome  ?  Or,  if  it  were  possible  for  a 
jury  to  put  itself  in  the  place  of  an  unmarried  and  solitary  woman 
of  advancing  years,  would  such  capricious  indulgence  in  pets  appear 
any  more  inconsistent  with  sanity,  than  would  an  analogous  indul- 
gence, by  a  young  man  of  dash  and  wealth,  in  hounds,  horses,  and 
foxes  ? 

§  45.  In  1867,  in  the  court  of  probate  and  divorce,  the  position 
Followed  ^^^^  ^  collateral  insane  delusion  invalidates  a  will  which 
by  Lord  -^vas  not  directly  the  product  of  such  delusion,  was  re- 
Smithy.  newed  by  Sir  J.  P.  Wilde  (Lord  Penzance)  on  the  fol- 
^  *  ■  lowing  state  of  facts  : — 
Ann  Thwaytes,  a  widow,  died  in  London  on  April  8,  1866,  pos- 
sessed of  a  fortune,  left  to  her  by  her  husband,  of  -£500,000.  By 
a  will  dated  March  6,  1866,  she  left  legacies  amounting  to  £45,000 
to  her  husband's  family ;  legacies  of  the  same  amount  to  the  family 
of  her  sister,  Mrs.  Tebbitt;  legacies  to  a  considerable  amount  to 
persons  whom  she  had  become  acquainted  with  in  the  latter  period 
of  her  life,  to  servants,  and  to  charities  ;  and  the  residue  to  John 
Simms  Smith  and  to  Samuel  Smith.  The  will  was  contested  by 
Mrs.  Tebbitt;  and  on  August  6,  1867,  judgment  was  delivered  by 
Sir  J.  P.  Wilde .^  He  began  by  stating  that  "  volition"  to  give 
disposing  power  "  should  be  that  of  a  mind  of  natural  capacity,  not 
unduly  impaired  by  old  age,  or  tainted  by  morbid  influence.  The 
inquiry  before  the  court  has  relation  only  to  the  last  of  these  con- 
ditions ;  and  the  subject  is  again  narrowed  by  the  nature  of  the 
morbid  influence  or  mental  disorder  imputed  ;  for  it  is  not  an  obvious 
and  general  perversion  of  the  mind  from  reason,  nor  of  language  or 
conduct  generally  irrational,  that  the  testatrix  is  here  accused ;  but 
only  of  that  peculiar  form  of  mental  malady  which  used  to  be  called 

'  Yglesias  v.  Dyke,  Prer.  Court,  May,         ^  ibid. 
1852,  Taylor,  2d  ed.,  ii,  556.     Redfield        3  gmith  v.  Tebbitt,  L.   R.  1  P.  &  D. 
on  Wills,  L  chap.  iii.  §  11.  398. 

50 


WILLS.  [§  45. 

partial  insanity,  and  which,  in  the  more  exact  language  of  modern 
science,  has  obtained  the  name  of  monomania.  A  jyerson  who  is 
affected  by  monomania,  although  sensible  and  prudent  on  subjects 
and  occasions  other  than  those  upon  which  his  infirmity  is  com- 
monly displayed,  is  not  in  law  capable  of  making  a  will.  This  has 
been  clearly  decided  in  the  several  cases  quoted  at  the  bar,  of  which 
it  is  only  necessai^y  to  7iame  that  of  Waring  v.  Waring.  It  is 
needless  to  travel  over  the  paths  by  which  this  conclusion  has  been 
reached.  It  is  properly  the  starting-point  in  such  an  inquiry  as 
the  present.  For  I  conceive  the  decided  cases  to  have  established 
this  proposition :  that  if  disease  be  once  shown  to  exist  in  the  mind 
of  the  testator,  it  matters  not  that  the  disease  be  discoverable  only 
when  the  mind  is  addressed  to  a  certain  subject,  to  the  exclusion  of 
all  others,  the  testator  must  be  pronounced  incapable.  Further, 
that  the  same  result  follows,  though  the  particular  subjects  upon 
which  the  disease  is  manifested  have  no  connection  whatever  with 
the  testamentary  disposition  before  the  court.''^  It  is  true  that  evi- 
dence as  to  Mrs.  Thwaytes  showed  her  mind  to  have  been  generally 
diseased.  She  called  herself  "  the  third  person  in  the  Trinity. 
She  was  the  Holy  Ghost,  and  Mr.  Simms  Smith  was  the  Father." 
She  believed  she  was  the  victim  of  attempts  to  poison.  She  was 
attended  by  the  spirits  of  deceased  friends.  Her  husband  was 
"  the  devil,"  for  whom  she  would  not  go  into  mourning.  Her  heirs- 
at-law  were  "  doomed  to  perdition."  She  could  "never  die."  She 
was  "  above  Grod."  She  had  a  tiara  of  jewels  made,  in  which  she 
was  to  ascend  to  heaven.  Her  London  drawing-room  was  furnished 
at  an  expense  of  j£15,000  for  the  "  day  of  judgment."  While  her 
husband  was  lying  dead,  and  before  his  funeral,  she  made  a  draft 
will  by  Avhich,  with  the  exception  of  about  ,£50,000,  she  bequeathed 
all  her  vast  property  to  Dr.  Smith.  This  was  followed  by  an 
annuity  of  ,£2000  a  year,  and  in  after  years  by  donations  to  the 
amount  of  £50,000.  Yet  Dr.  Smith  "  was  a  stranger  in  blood  to 
her,  and  is  not  shown,"  so  speaks  Sir  J.  P.  Wilde,  "  up  to  the  time 
of  the  above  will,  to  have  rendered  her  any  service  beyond  ordinary 
medical  advice,  or  filled  any  other  relation  to  her  than  medical 
adviser.  In  after  years  he  added  to  his  medical  advice  the  trouble 
of  receiving  her  dividends,  and  paying  them  in  to  her  bankers." 
Certainly  evidence  such  as  this  does  not  show  simply  a  "  mono- 
mania" on  any  one  special  and  isolated  topic,  disconnected  with  the 

51 


§  46.]        MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   KELATIONS. 

subject  matter  of  testamentary  disposition.  If  Mrs.  Thwaytes  was 
not  insane,  in  the  general  sense  of  the  term,  she  cherished  insane 
delusions  as  to  those  who  were  the  subjects  on  whom  her  will  was 
to  act.  Hence,  on  the  principle  that  "  partial"  insanity  defeats  a 
will  which  is  its  direct  offspring,  Mrs.  Thwaytes's  will,  viewing  her 
insanity  as  partial,  would  have  been  inoperative.  But,  as  has 
been  seen,  the  language  of  Sir  J.  P.  Wilde  goes  beyond  this.  For 
he  declares  that  mental  disease  destroys  testamentary  capacity 
"  though  the  particular  subjects  upon  which  the  disease  is  mani- 
fested have  no  connection  whatever  with  the  testamentary  disposi- 
tion before  the  court. "^ 

§  46.   But  in  July,  1870,  the    general   legal   proposition   thus 

stated  was  expressly  repudiated  by  the  court  of  queen's 

atedbythe   bench. ^     The  will  in  dispute  was  one  in  favor  of  the 

bench'^         testator's  niece.     It  was  made  in  1863.     He  had  been 

Banks  Y.       confined  as  a  lunatic  for  some  months  in  1841.     He  was 

Gooafellow. 

subject,  down  to  the  date  of  the  will,  to  particular 
delusions — he  was  personally  molested  by  a  person  who  had 
been  long  since  dead,  and  he  was  pursued  by  visible  evil  spirits. 
x\s  to  his  general  capacity  the  evidence  was  contradictory,  but  it 
was  admitted  that  at  times  he  was  incapable  of  making  a  will.  The 
jury  were  directed  to  consider  whether,  at  the  time  of  making  the 
will,  the  testator  was  capable  of  having  such  a  knowledge  and  ap- 
preciation of  facts,  and  was  so  far  master  of  his  intentions,  free  from 
delusions,  as  would  enable  him  to  have  a  will  of  his  f  wn  in  the  dis- 
position of  his  property,  and  act  upon  it;  and  they  were  further 
directed  that  the  mere  fact  of  his  being  able  to  recollect  things,  or 
■to  converse  rationally  on  some  subjects,  or  to  manage  some  business, 
would  not  be  sufficient  to  show  he  was  sane;  while,  on  the  other 
hand,  slowness,  feebleness,  and  eccentricities,  would  not  be  suffi- 
■cient  to  show  he  was  insane ;  and  that  the  whole  burden  of  showing 
that  the  testator  was  fit  at  the  time,  was  on  the  party  claiming  un- 
der the  will.  It  was  ruled  by  the  court  in  banc  that  the  direction 
was  practically  right,  for  that  it  was  immaterial  whether  the  delu- 

'  See  a  notice  of  this  decision  in  the  lor,  and  Hannen,  JJ.     This  has  been 

British  and  Foreign  Medico-Chir.  Re-  followed  in  Boughton  r.  Knight  (1873), 

view  for  October,  1867.  L.  R.  3  P.  &  D.  64,  and  Smee  v.  Smee 

2  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  (1879),  L.  R.  5  P.  D.  84,  both  bv  Sir 

549  ;  Cockburn,  C.  J.,  Blackburn,  Mel-  James  Hannen,  P.  J. 

52 


WILLS.  [§  46. 

sions  remained  latent  or  not  at  the  time,  if  the  testator  was  other- 
wise comjoetent  to  make  a  Avill,  as  neither  of  the  delusions — the 
dead  man  being  in  no  Avay  connected  with  the  testator — had,  or 
could  have  had,  any  influence  upon  him  in  disposing  of  his  property. 
Lord  Cockburn,  C.  J.,  in  delivering  judgment,  said  that  "it  was 
necessary  to  consider  how  far  such  a  degree  of  unsoundness  of  mind 
as  is  involved  in  the  delusions  under  which  this  testator  labored 
would  be  fatal  to  testamentary  capacity ;  in  other  words,  whether 
delusions  arising  from  mental  disease,  but  not  calculated  to  prevent 
the  exercise  of  those  faculties  essential  to  the  making  of  a  will,  or 
to  interfere  with  the  consideration  of  the  matters  which  should  be 
weighed  and  taken  into  account  on  such  an  occasion,  and  Avhich  de- 
lusions had,  in  point  of  fact,  no  influence  whatever  on  the  testamen- 
tary disposition  in  question,  are  sufiicient  to  deprive  a  testator  of 
testamentary  capacity  and  to  invalidate  a  will." 

He  then  analyzed  the  proof  of  the  existence  of  partial  insanity  in 
the  testator,  and  after  an  extended  review  of  the  law,  both  English 
and  American,  he  said:  "No  doubt,  when  the  fact  that  the  testator 
had  been  subject  to  any  insane  delusion  is  established,  a  will  should 
be  regarded  with  great  distrust,  and  every  presumption  should  in 
the  first  instance  be  made  against  it.  When  insane  delusion  has 
once  been  shown  to  have  existed,  it  may  be  difiicult  to  say  whether 
the  mental  disorder  may  not  possibly  have  extended  beyond  the 
particular  form  or  instance  in  which  it  has  manifested  itself.  It 
may  be  equally  difficult  to  say  how  far  the  delusion  may  not  have 
influenced  the  testator  in  the  particular  disposal  of  his  property; 
and  the  presumption  against  a  will  made  under  such  circumstances 
becomes  additionally  strong  where  the  will  is,  to  use  the  term  of 
the  civilians,  an  inofficious  one,  that  is  to  say,  one  in  which  natural 
affection  and  the  claims  of  near  relationship  have  been  disregarded. 
But  when  in  the  result  the  jury  are  satisfied  that  the  delusion  has 
not  affected  the  general  faculties  of  the  mind,  and  can  have  had  no 
effect  upon  the  will,  we  see  no  sufficient  reason  why  the  testator 
should  be  held  to  have  lost  his  right  to  make  a  will,  or  why  a  will 
made  under  such  circumstances  should  not  be  upheld.  Such  an  in- 
quiry may  involve,  it  is  true,  considerable  difficulty,  and  require 
much  nicety  of  discrimination ;  but  we  see  no  reason  to  think  that 
it  is  beyond  the  power  of  judicial  investigation  and  decision,  or  may 
not  be  disposed  of  by  a  jury  directed  or  guided  by  a  judge.     In 

53 


§  47-]        MENTAL    UNSOUNDNESS   IN   ITS   LEOAL    RELATIONS. 


the  case  before  us,  two  delusions  disturbed  the  mind  of  the  testator, 
the  one  that  he  was  pursued  by  spirits;  the  other  that  a  man,  long 
since  dead,  came  personally  to  molest  him.  Neither  of  these  delu- 
sions, the  dead  man  not  having  been  in  any  way  connected  with 
him,  had,  or  could  have  had,  any  influence  upon  him  in  disposing 
of  his  property.  Under  these  circumstances,  then,  we  see  no  ground 
for  holding  the  will  to  be  invalid."  The  rule,  therefore,  which  was 
applied  for  on  the  ground  that  the  judge  misdirected  the  jury,  and 
that  the  verdict  was  against  the  weight  of  evidence,  was  discharged. 
§  47.  We  have,  therefore,  an  apparent  conflict  in  the  English 
decisions  as  above  recorded.  On  the  one  hand,  in  the 
view  of  Sir  J.  Nicholl,  Chief  Justice  Cockburn,  and  Sir 
James  Hannen,^  ''partial  insanity,"  consisting  of  delu- 
sions and  hallucinations  not  connected  with  the  subject 
matter  of  a  will,  does  not  invalidate  such  will.  On  the 
other  hand,  in  the  opinions  quoted  from  Lord  Brougham  and  Lord 
Penzance,  it  is  held  that  insanity  or  "mental  disease,"  when  it  ex- 
ists at  all,  destroys  testamentary  capacity,  though  it  displays  itself 
in  delusions  which  in  no  way  touch  the  subject  matter  of  the  will. 
If  we  view  the  question  psychologically,  as  will  hereafter  be  more 
fully  done,^  it  will  be  difficult  to  overthrow  the  reasoning  of  Lord 
Brougham  and  Lord  Penzance.  We  cannot  hold  one  department  of 
the  mind  to  be  sane,  and  the  others  insane,  unless  we  adopt  the  com- 
partment theory,  which,  as  will  hereafter  be  seen,  is  absurd. 


Conflict  in 
these  deci- 
sions. Lord 
Brough- 
am's the- 
ory. 


1  "A  few  years  ago  it  was  generally 
considered  that  if  a  man's  mind  were 
unsound  in  one  particular,  the  mind 
being  one  and  indivisible,  his  mind 
was  altogether  unsound,  and  therefore 
that  he  could  not  be  held  capable  of 
performing  rationally  such  an  act  as 
the  making  of  a  will.  A  different  doc- 
trine subseqiiently  prevailed.  If  the 
delusions  could  not  reasonably  be  con- 
ceived to  have  had  anything  to  do  with 
the  deceased's  power  of  considering  the 
claims  of  his  relations  upon  him  and 
the  manner  in  which  he  should  dispose 
of  his  property,  then  the  presence  of  a 
particular  delusion  would  not  incapaci- 
tate him  from  making  a  will.     .     .     . 

54 


This  is  an  extremely  delicate  and  diffi- 
cult investigation,  and  may  be  illus- 
trated by  reference  to  the  physical 
world.  There  might  be  a  little  crack 
in  some  geological  stratum  of  no  im- 
portance in  itself,  and  nothing  more 
than  a  chink  through  which  water  fil- 
tei's  into  the  earth  ;  but  it  might  be 
shown  that  this  flaw  had  a  direct  influ- 
ence upon  the  volume,  or  color,  or 
chemical  qualities  of  a  stream  that  is- 
sued from  the  earth  many  miles  away. 
So  with  the  mind."  Sir  J.  Hannen  in 
Smee  v.  Smee,  L.  R.  5  P.  D.  84,  at  p. 
90. 
2  Infra,  §§  533-572. 


WILLS.  [§  49. 

§  48.  In  a  modified  form  the  compartment  theory  is  thus  exhibited 
in  detail  by  Lord  Chief  Justice  Cockburn.^     "  It  is  not 

Of' 

given  to  man,"  he  says,  "to  fathom  the  mystery  of  the    Cockbum 
human  intellio;ence,  or  to  ascertain  the  constitution  of  our   ^"  '^■'^' 

°  '  compart- 

sentient  and  intelligent  being.  But  whatever  may  be  its  mentthe- 
essence,  every  one  must  be  conscious  that  the  faculties 
and  functions  of  mind  are  as  various  and  distinct  as  are  the  powers 
and  functions  of  our  physical  organization.  The  senses,  the  instincts, 
the  affections,  the  passioyis,  the  moral  qualities,  the  will,  perception, 
thought,  reason,  imagination,  memory,  are  so  many  distinct  facul- 
ties or  functions  of  mind.  The  pathology  of  mental  disease,  and 
the  experience  of  insanity  in  its  various  forms,  teach  us  that  while, 
on  the  one  hand,  all  the  faculties,  moral  and  intellectual,  may  be 
involved  in  one  common  ruin,  as  in  the  case  of  a  raving  maniac;  in 
other  instances,  one  or  more  only  of  these  faculties  or  functions 
may  be  disordered,  while  the  rest  are  left  unimpaired  and  undis- 
turbed; that,  while  the  mind  may  be  overpowered  by  delusions 
which  utterly  demoralize  it,  and  unfit  it  for  the  perception  of  the 
true  nature  of  surrounding  things,  or  for  the  discharge  of  the  com- 
mon obligations  of  life,  there  often  are  delusions  which,  though  the 
offspring  of  mental  disease,  and  so  far  constituting  insanity,  yet 
leave  the  individual  in  all  other  respects  rational,  and  capable  of 
transacting  the  ordinary  aifairs  and  fulfilling  the  duties  and  obliga- 
tions incidental  to  the  various  relations  of  life.  No  doubt,  when 
delusions  exist  which  have  no  foundation  in  reality,  and  spring  only 
from  a  diseased  and  morbid  condition  of  the  mind,  to  that  extent  the 
mind  must  necessarily  he  taken  to  he  unsound,  just  as  the  hody,  if 
any  of  its  p)arts  or  functions  is  affected  hy  local  disease,  may  he 
said  to  he  unsound,  though  all  its  other  members  may  he  healthy 
and  their  powers  or  functions  unimpaired^ 

§  49.  If  we  take  the  last  qualification,  which  is  here  placed  in 
italics,  as  conceding  the  general  unsoundness  of  such  a    „^.    ,. 

,  ,  ,  .    .  Objection 

mind,  there  is  no  practical  difierence  between  the  opinion   to  this 
of  Chief  Justice  Cockburn,  on  the  one  side,  and  the  views 
of  Lord  Brougham,  and  of  all  sound  modern  psychologists,  on  the 
other  side.     But,  going  back  to  the  beginning  of  the  above  extract, 
if  it  were  the  opinion  of  its  able  and  eminent  author,  that  (1)  the 

•  Per  Cockburn,  C.  J.,  Banks  v.  Goodfellow,  uhi  supra. 

55 


§  50.]        MENTAL    UNSOUNDNESS    IN   ITS    LEfiAL    RELATIONS. 

senses,  (2)  the  instincts,  (3)  the  affections,  (4)  the  passions,  (5) 
the  moral  qualities,  (6)  the  will,  (7)  the  perception,  (8)  the  thought, 
(9)  the  reason,  (10)  the  imagination,  and  (11)  the  memory,  are 
independent  and  separate  portions  of  the  mind,  so  that  one  of  these 
may  be  insane,  and  yet  the  individual  may  be  in  all  other  respects 
rational,  we  must  reject  such  a  position  as  not  only  philosophically 
incorrect,  but  as  fraught  with  consequences  dangerous  to  public 
justice.  That  such  is  the  case  will  be  hereafter  fully  shown.^  It 
is  enough  now  to  say,  that  if  we  suppose  a  person  to  have  an  insane 
delusion  of  the  "senses"  (the  first  of  C.  J.  Cockburn's  "distinct 
faculties  or  functions  of  mind"),  it  is  hard  to  conceive  how  such  a 
delusion  can  continue  to  exist,  if  the  other  faculties  remain  in  vigor. 
In  fact,  all  men  have,  sleeping  or  waking,  such  delusions;  and  the 
question  of  sanity  depends,  not  on  the  liability  of  the  "senses"  to 
delusion,  but  on  the  capacity  of  the  other  mental  faculties  to  dispel 
the  delusion.  Thus,  for  instance,  De  Boismont  tells  us  that,  at  a 
soiree  given  by  M.  Bellart,  in  Paris,  some  days  before  the  execu- 
tion of  Marshal  Ney,  Prince  of  Moskowa,  the  usher,  having  the 
name  of  M.  Marechal  Ame  to  announce,  pronounced  it  "  M.  le  Mare- 
chal  Neyy  "An  electric  shudder  ran  through  the  assembly,  and, 
for  my  own  part,  I  own  that  the  resemblance  to  the  prince  was  for 
a  moment  as  perfect  to  my  eyes  as  reality."  The  delusion  Avas  the 
eifect  of  a  highly  excited  imagination,  seizing  upon  an  association 
of  sounds.  The  dispelling  of  this  delusion  was  the  result  of  "per- 
ception," "thought,"  "reason,"  and  "memory,"  acting  healthily. 
The  delusion  could  not  have  continued  to  exist  while  these  latter 
functions  of  mind  continued  in  a  healthy  state.  If  it  had  continued 
to  exist,  this  would  have  been  a  proof  that  these  functions  were  dis- 
eased. Or,  to  state  the  proposition  generally,  no  insane  delusion 
can  continue  to  operate,  when  proper  modes  have  been  taken  to  dis- 
pel it,  while  the  reason  is  unimpaired.  The  fact  that  such  a  delu- 
sion continues  to  operate,  under  such  conditions,  proves  the  unsound- 
ness of  the  reason. 

§  50.  That  such,  indeed,  is  C.  J.  Cockburn's  own  conclusion, 
we  gather  from  the  concluding  and  italicized  portions  of  the  extract 
just  quoted  ;  and  the  apparent  conflict  of  opinion  to  Avhich  we  have 
adverted  may  therefore  be  reconciled  when  we  recollect  that  as  in 

»  Infra,  §§  142,  533-572, 

66 


WILLS.  [§  51. 

sanity,  so"  in  insanity,  there  are  various  gradations,  and  that  sanity 
and  insanity,  therefore,  have  a  region  in  which  they 

TtiGoriGS 

melt  into  each  other  imperceptibly.^  To  adopt  an  illus-  reconciled 
tration  that  Lord  Penzance  borrows  from  Mr.  Burke,  we  gition^^of*' 
know  what  night  is,  and  we  know  what  day  is,  but  it  is    mentaitwi- 

.  .  .      light. 

hard  for  us  to  say  when  either  day  or  night  becomes  twi- 
light. Hence,  just  as  some  sane  persons  (e.  g.  in  sleep  or  when 
acting  under  compulsion)  may  be  irresponsible,  so  some  insane 
persons  may  be  responsible,  and  be  legally  viewed  as  such.  A 
person  may  be  of  diseased  mind,  yet  may  be  capable  of  testifying, 
in  cases  when  such  evidence  is  necessary,^  in  a  court  of  justice  ; 
may  make  contracts,  as  has  just  been  seen,  which,  when  there  is  no 
unfairness,  and  the  party  contracted  with  is  without  notice,  will  be 
held  binding;  and  may  be  responsible,  though  it  may  be  in  a  dimin- 
ished grade,  for  crime. ^  And  it  is  clear  that  a  person  of  a  very  low 
degree  of  intelligence,  even  when  the  mind  is  debilitated  by  old 
age,  may  make  a  will  which,  if  not  unduly  influenced,  will  be  good. 
Several  cases  to  this  effect  have  been  already  cited  ;  and  such  cases, 
in  fact,  are  relied  on  by  Chief  Justice  Cockburn  for  the  maintenance 
of  the  position  that  persons  of  "  unsound  mind"  may,  under  cer- 
tain circumstances,  when  they  have  a  disposing  memory,  and  when 
they  have  no  delusion  as  to  the  testamentary  subject  matter,  make 
a  valid  will. 

§  51.  If  we  accept  the  position  just  stated — that  there  may  be 
degrees  of  mental  disease  Avhich  do  not  destroy  testa- 
mentary capacity,  provided  the  testator  has  at  the  time  j^^l^giWe^ 
a  disposing  memory,  and  is  not  influenced  by  fraud  or 
imposition  —  then  we  not  only  reconcile  the  cases  which  have 
been  cited  above,  but  we  avoid  a  very  embarrassing  alterna- 
tive. For,  unless  we  concede  that  there  may  be  grades  in  mental 
disease,  and  that  in  the  lesser  and  more  qualified  grades  there  may 
be  testamentary  capacity,  we  must,  in  cases  of  collateral  mono- 
manias, hold  either  that  the  mind  is  divisible,  so  that  one  part  may 
be  sane  and  the  other  insane,  or,  as  maintained  by  Lord  Brougham 

1  See  The   Borderlands  of  Insanity,  v.  Walton,  40  L.  J.  Ch.  368.     Infra,  § 
by  Andrew  Wynter,  M.D.,  N.  Y.  1875.  242. 

2  R.  V.  Hill,  2  Den.  C.  C.  254  ;  Fen-        3  gge  infra,  §  122. 
uel  V.  Tait,  1  C.  M.  &  84;  Spittle 

57 


§  53.]        MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

and  Lord  Penzance,  that  a  single  such  monomania  destroys  capacity 
in  toto.     Let  us  examine  these  hypotheses  singly. 

First,  that  the  mind  is  divisible,  so  that  one  part  may  be  sane  and 
th.e  other  insane.  The  psychological  error  of  this  hypothesis  is 
elsewhere  displayed.^  Its  practical  absurdities  may  be  here  briefly 
noticed.  If  it  be  true,  a  testator,  instead  of  being  one  person,  is 
a  combination  of  two,  one  sane,  and  another  insane.  His  will,  like 
himself,  is  divisible.  That  part  which  emanates  from  his  insane 
delusions  is  void  ;  the  part  that  emanates  from  his  sane  judgment  is 
valid.  So  as  to  his  contracts.  Supposing  we  assume  this  duality, 
we  have,  instead  of  one  obligor,  two — the  insane  part  of  the  obligor, 
making  obligations  which  are  void  ;  the  sane  part,  making  obliga- 
tions which  are  valid.  Or,  if  we  hold  that  the  will  or  the  contract 
is  avoided  when  the  insane  elements  in  the  testator's  or  obligor's 
mind  affect  such  contract  or  will,  we  must  enter  on  the  still  more 
difficult  task  of  deciding  the  extent  to  which  such  insane  elements 
operate.  What  tests  can  we  have  for  such  an  examination  ?  Who 
can  undertake  to  limit  the  operation  of  motives  admitted  to  be  in- 
sane, and  therefore  incapable  of  rational  measurement  ?  Who  can 
undertake  to  say  that  these  insane  influences  at  a  particular  moment, 
by  yielding  to  a  sound  judgment,  become  virtually  sane  ? 

§  52.  On  the  other  hand,  if  we  hold  that  insane  delusions,  dis- 
Yet  deiu-  connected  with  the  subject  matter  of  a  will,  destroy  tes- 
sions  need     tamentary  capacity  in  toto.  we  are   embarrassed  with 

not  destroy     _„      ,  .  ,  „  ,;r  ^ 

capacity  m  difficulties  at  least  equally  great.  Many  men  whose 
"  "*  testamentary  capacity  it  would  be  monstrous  to  dispute, 

have  confessed  delusions  whose  sanity  it  would  be  equally  mon- 
strous to  maintain.^  Thus,  Dr.  Johnson  was  confident  that  he  heard 
his  deceased  mother's  voice,  crying  "  Samuel ;"  nor  was  this  hallu- 
cination ever  corrected  ;  and  yet  no  one  would  maintain  that  he  was 
incapable  of  making  a  Avill. 

§  53.  Lord  Castlereagh,  a  short  time  before  his  suicide,  gave  a 
This  proved  '^^I'rative  of  a  supposed  apparition,  in  which  he  firmly 
by  in-  believed,  and  which  exercised  a  material  influence  on  his 

stances  of 

delusions      life.     When  in  the  Irish  Parliament,  he  went  to  visit  a 

J  See  infra,  §§  532-572.  Illusions,  by  Jas.  Sully,  N.  Y.,  1881. 

2  See  Visions,  a  Study  of  False  Light,     And  see  an  article  on  Auditory  Hallu- 
by  E.  A.  Clarke,  M.D.,  Boston,  1878;     cinations,  in  8  Journ.  Med.  Sci.  597. 

58 


WILLS.  [§  53  «. 

friend  at  a  castle  in  the  north  of  Ireland.  Shown  into  a  afifecting 
dark  and  venerable  chamber,  where  there  existed  every  minded 
material  which  would  excite  a  superstitious  imagination,  Persons. 
having  dismissed  his  valet,  he  went  to  bed.  Hardly,  however,  was 
his  candle  extinguished,  when  he  became  aware  of  a  glimmer  of 
light  in  his  room.  No  fire  had  been  lighted — the  curtains  were 
closed — and  no  explanation  affording  itself  of  this  phenomenon,  he 
rose  from  the  bed,  when,  to  his  surprise,  on  turning  to  the  point 
whence  the  light  proceeded,  he  perceived  the  figure  of  a  young  and 
beautiful  child,  with  a  halo  encircling  its  brow.  With  perfect  con- 
fidence in  the  reality  of  the  object,  but  believing  it  had  been  got 
up  artificially  as  a  joke,  he  followed  it  until  it  nestled  in  the  arch 
of  the  great  chimney,  and  at  last  sunk  beneath  the  fireboard.  The 
next  morning  he  sought  in  vain  for  a  clue  by  which  the  mystery 
could  be  dispelled.  It  was  a  subject  which  his  host  evidently 
shunned.  On  putting  the  question  pointedly,  however.  Lord  Cas- 
tlereagh  was  informed  that  it  was  true  that  such  a  spectre  as  that 
had  been  reported  in  former  times  to  have  appeared  under  the  title 
of  the  "Radiant  Child."  Once  again  the  phantom  appeared  to  the 
same  noble  and  capable  statesman — but  no  longer,  it  is  said,  with  a 
radiant  crown.  This  last  appearance  was  not  long  before  his  own 
self-destruction,  and  yet,  if  the  exterior  alone  was  considered,  when 
he  was  at  the  height  of  his  power  and  fame.  Certainly  the  spectre 
can  now  be  easily  explained,  because  a  man  who  is  weak  enough  to 
commit  suicide  is  not  too  strong  to  be  haunted  in  a  dream  by  an 
apparition  of  whose  traditional  reputation  he  had  undoubtedly 
heard,  though  the  recollection  afterwards  escaped  him.  And  yet 
we  have  here  a  case  of  an  hallucination  so  entire  as  to  produce 
partial  insanity  on  that  point,  and  perhaps  to  have  been  a  motive 
power  in  suicide.  Still,  it  would  hardly  have  been  maintained  that 
Lord  Castlereagh,  than  whom  no  man  of  his  day  exhibited,  when  in 
public  life,  greater  coolness  or  business  clearness,  Avas  incapable, 
because  of  this  single  delusion,  of  making  a  contract  or  will. 

§  63  a.  A  similar  anecdote  is  related  of  the  late  President  Lin- 
coln :  "  It  was  just  after  my  election  in  1860,"  so  he  is  reported  to 
have  said  to  his  secretary,  Mr.  John  Hay,  "  when  the  news  had 
been  coming  in  thick  and  fast  all  day,  and  there  had  been  a  great 
'  hurrah,  boys  !'  so  that  I  was  well  tired  out,  and  went  home  to  rest, 
throwing  myself  on  a  lounge  in  my  chamber.  Opposite  to  where  I 
lay  was  a  bureau,  with  a  swinging-glass  upon  it ;  and,  in  looking  in 

59 


§  53  a.]      MENTAL    UNSOUNDNESS    IN   ITS    LEGAL    RELATIONS. 

that  glass,  I  saw  myself  reflected  nearly  at  full  length ;  but  ray 
face,  I  noticed,  had  two  separate  and  distinct  images,  the  tip  of  the 
nose  of  one  being  about  three  inches  from  the  tip  of  the  other.  I 
was  a  little  bothered,  perhaps  startled,  and  got  up  and  looked  in 
the  glass  ;  but  the  illusion  vanished.  On  lying  down  again,  I  saw 
it  a  second  time — plainer,  if  possible,  than  before  ;  and  then  I 
noticed  that  one  of  the  faces  was  a  little  paler — say  five  shades — 
than  the  other.  I  got  up,  and  the  thing  melted  away,  and  in  the 
excitement  of  the  hour  I  forgot  all  about  it — nearly,  b*ut  not  quite, 
for  the  thing  would  once  in  a  while  come  back  again  :  but  I  never 
succeeded  in  bringing  the  ghost  back  after  that,  though  I  once  tried 
very  industriously  to  show  it  to  my  wife,  who  was  worried  about  it 
somewhat.  She  thought  it  was  a  '  sign'  that  I  was  to  be  elected  to 
a  second  term  of  office,  and  that  the  paleness  of  one  of  the  faces 
was  an  omen  that  I  should  nOt  see  life  through  the  last  term."^ 
Nor  was  this  a  single  case  of  morbid  cerebral  action  in  the  life  of 
this  remarkable  man.  "  He  was,"  says  his  biographer,  Mr.  Lamon, 
"  readily  impressed  with  the  most  absurd  superstitions."  "  He 
lived  constantly  in  the  serious  conviction  that  he  was  himself  the 
subject  of  a  special  decree,  made  by  some  unknown  and  mysterious 
power,  for  which  he  had  no  name."  "  He  had  great  faith  in  the 
virtues  of  the  '  mad  stone,'  although  he  could  give  no  reason  for  it, 
and  confessed  it  looked  like  superstition."  Twice  was  his  nervous 
system  so  disordered,  that  it  was  necessai-y,  according  to  the  same 
authority,  to  withdraw  him  from  his  business  associations,  and  place 
him,  as  had  been  the  case  with  Lord  Chatham,  in  seclusion.^  Yet 
Mr.  Lincoln  was  eminent  for  shrewd  sense,  for  cool  judgment,  and 
for  wise  forethought  in  business,  private  as  well  as  public.  He 
enjoyed,  to  an  almost  unparalleled  degree,  the  confidence  not  merely 
of  those  who  knew  him  only  by  public  reputation,  but  of  those  who 
thoroughly  knew  his  private  history.  By  both  classes  was  he 
trusted  with  the  highest  stakes.  He  possessed  in  singular  fulness, 
if  we  should  judge  from  this  estimate,  the  very  qualities  which  con- 
stitute testamentary  capacity.  Yet  Mr.  Lincoln,  on  the  strictest 
test  above  laid  down,  would  have  been  incapable  of  making  a  will. 

t  The  Life  of  Abraham  Lincoln,  etc.,         "  Ibid.,  pp.  164,  241,  503.    See  Wash- 
by  Ward  H.   Lamon.     Boston  :   J.  R.     ington  Irving's  Life,  by  Pierre  Irving, 
Osgood  &  Co.,  1872,  p.  476.     See,  as  to    vol.  iii.  141. 
peculiarities  of  Mr.  Garfield,  North  Am. 
Rev.  for  Jan.  1882,  p.  10. 

60 


WILLS.  [§  56. 

§  54.  It  was  the  firm  belief  of  Lord  Herbert,  of  Cherbury,  that  a 
divine  vision  had  indicated  to  him  the  correctness  of  a  particular 
course  of  religious  speculation  which,  on  the  faith  of  the  supposed 
vision,  he  published,  and  which  he  made  the  basis  of  his  future  ac- 
tion. The  second  Lord  Lyttleton  was  equally  persuaded  that  a 
divine  warning  had  admonished  him  of  his  approaching  death.  And 
no  less  confident,  though  less  serious  in  its  consequences,  was  the 
conviction  of  Philip,  second  Earl  of  Chesterfield,  of  the  reality  of  a 
similar  preternatural  interference.  One  night,  in  the  year  1652,  he 
saw  something  white,  like  a  spread  sheet,  at  the  head  of  his  bed. 
He  tried  to  seize  it,  but  it  slid  away  and  disappeared.  His  thoughts 
immediately  turning  to  his  wife,  who  was  at  Networth,  with  her 
father,  he  hurried  there,  but  was  met  by  a  servant  with  a  letter  from 
his  wife,  which  informed  him  that  precisely  the  same  apparition  had 
appeared  to  her,  and  had  been  the  cause  of  the  journey  of  the  mes- 
senger whom  she  had  dispatched  to  inquire  as  to  his  health. 

§  55.  Abercombie  gives  an  illustration  of  habitual  hallucination 
which  at  the  same  time  was  consistent  with  reason.  The  patient, 
when  he  met  a  person  in  the  street,  was  uncertain  whether  the  lat- 
ter was  a  real  person  or  a  phantom,  though  with  close  observation 
he  was  able  to  detect  the  dissimilarity.  The  features  of  the  real 
person  would  be  more  decided,  and  more  complete  than  those  of  the 
phantom  ;  but  the  power  of  discrimination  by  this  process  was  too 
uncertain  to  be  relied  on,  and  the  only  test  of  which  the  patient  felt 
certain  was  that  of  the  voice,  footstep,  or  touch.  The  phantom  had 
none  of  these  ;  the  substance,  of  course,  had  all.  He  had  the  faculty 
of  recalling  his  visions  at  will,  by  powerfully  fixing  his  attention 
on  the  conceptions  of  his  mind,  but  while  the  hallucination  could  be 
invoked  at  will,  it  could  not  be  arbitrarily  dispelled.  That  it  was 
an  hallucination,  he  was  perfectly  convinced ;  and  that  it  was  en- 
tirely consistent  with  general  reason  was  demonstrated  by  his  clear- 
ness of  head  and  business  capacity.^ 

§  56.  A  recent  case  in  this  country  illustrates  the  same  position 
with  remarkable  point.  A  merchant,  who  had  for  years  managed 
with  shrewdness  and  success  an  extensive  business,  became  thor- 
oughly imbued  with  the  spirit  rapping  and  spirit  conversing  halluci- 

'  In  this  connection,  see  The  Athenaeum  for  Jan.  17,  1880,  and  2(j  Journ. 
Ment.  Sci.  147. 

61 


§  57.]        MENTAL   UNSOUNDNESS   IN   ITS    LEGAL    RELATIONS. 

nation.  Though  he  conducted  his  business  as  well  as  those  who 
were  not  thus  afflicted,  his  family  conceived  that  this  and  cognate 
eccentricities  made  him  a  fit  subject  for  a  commission  of  lunacy. 
This  he  soon  discovered,  and  laid  his  plans  accordingly.  He  had 
theretofore  done  a  cash  business,  and  his  punctuality  and  accuracy 
had  won  him  extensive  credit.  He  immediately  proceeded  to  buy 
a  large  stock  of  goods  from  a  number  of  the  most  sagacious  business 
men  within  his  reach,  and  gave  long  notes  in  exchange.  "  I  do  not 
know  how  it  strikes  you,"  was  the  way  he  broached  the  matter  to 
his  family,  "  but  whatever  may  have  been  your  chances  once,  they 
are  light  now.  All  I  have  to  do  is  to  subpoena  my  friends  to  whom 
I  have  just  given  my  notes,  and  you  may  depend  upon  it,  they  will 
not  only  testify  strongly  as  to  their  opinion  of  my  sanity,  but  will 
bring  that  opinion  down  to  this  particular  hour."^ 

§  57.  The  cases  which  have  just  been  noticed  comprise  chiefly 
Important  those  in  which,  while  the  hallucination  is  positive,  the 
modifica-  practical  deflection  of  conduct  produced  may  be  slight, 
conduct  This,  however,  cannot  be  said  to  be  the  case  with  those 
caiisedby  instances  in  which  a  supposed  supernatural  vision  or 
vibions.  rnonitor  is  received  as  a  guide  on  the  most  momentous 
actions  of  life.  Napoleon  declared  on  many  critical  occasions 
that  he  was  conscious  of  the  preternatural  vision  of  a  star,  which 
sometimes  even  appeared  in  his  own  cabinet,  by  which  he  allowed 
himself  to  be  guided.  Bernadotte,  beyond  doubt,  on  one  important 
movement  at  least,  was  swerved  from  his  course  by  the  vision  of  an 
old  woman.  Constantino  felt  or  feigned  a  similar  impressibility. 
These  cases,  it  is  true,  may  be  suspected;  but  suspicion  cannot  be 
thus  cast  on  the  multitudes  of  brave  men  who  were  driven  in  border 
or  highland  contests  from  the  battle-field  by  a  threatening  wraith, 
or  who  were  encouraged  to  the  wildest  sacrifices  by  the  beckoning 
Df  an  imaginary  finger  or  the  invocations  of  a  preternatural  voice.^ 

1  See  an  article  on  The  Hallucina-  vision  seen  by  the  Rev.  D.  Jessopp, 
lions  of  Mahomet  and  others,  20  Jouru.  Athenaeum,  Jan.  17,  1880  ;  and  26 
Ment.  Sci.  561.  Journ.   Med.   Sci.   147;   an  article  on 

2  In  this  connection  may  he  referred  the  Visions  of  Sane  Persons,  in  Lit- 
to,  Visions,  A  Study  of  False  Light,  by  tell's  Living  Age,  No.  1895,  from  the 
Edward  H.  Clarke,  M.D.,  Boston,  1878  ;  Fortnightly  Review  ;  Hallucinations  of 
Illusions,  by  James  Sully,  New  York,  Hearing,  article  by  Frederick  Joly, 
1881;    communications   relating   to   a  M.D.,  22  Journ.  Med.  Sci.  475. 

62 


WILLS. 


[§59. 


§  58.  There  are,  however,  other  eases  in  which  there  is  a  general 
morbid  derangement  of  all,  or  of  a  material  portion,  of  ^^^^  ^^^^ 
the  organs.     To  these,  as  well  as  to  the  great  mass  of  morbid  de- 

,  ,,!../.  11.1         rang-ement 

instances  where  hallucmation  lorms  the  groundwork,  the  need  not  in- 
observations  of  De  Boismont,  on  the  case  of  a  man  Avho  ^^"^^^^ 
supposed  that  he  had  sunk  all  his  wealth  at  the  bottom  of  a  well, 
apply  with  great  force.  "It  may  be  asked  whether,  in  the  state  of 
mind  in  which  the  patient  was,  whose  history  we  have  related,  he 
was  capable  of  making  a  will.  This  is  a  very  difficult  question ; 
but  its  solution  is  not  an  impossibility.  When  the  conduct  of  the 
individual  does  not  depart  from  received  usages,  when  it  is  not  con- 
trolled by  one  of  those  false  ideas  that  make  him  hate  his  relations 
and  friends  without  any  motive,  and  when  he  regulates  his  expenses 
prudently,  we  do  not  think  that  whimsical  actions,  or  words,  the 
results  of  an  erroneous  belief,  but  having  no  influence  on  the  promi- 
nent acts  of  his  life,  should  deprive  a  person  of  his  civil  liberties, 
and  of  the  power  of  making  his  will." 

§  59.  In  conformity  with  what  has  been  said,  spiritual-    Spirituaiis- 
istic  opinions,  no  matter  how  wild  and  unfounded  they    sionsdonot 
are,  or  how  completely  the  party  holding  them  may  be    tate  unless 
the  victim  of  the  fraud  and  impositions  of  others,  do  not   tesutor°o 
of  themselves,  if  not  producina;  special  provisions  based   undue  in- 

.   '  ,      ,  fluence  or 

on  mtormation  thus  erroneously  held  to  have  been  re-    affecting 
ceived,  or  subjecting  the  testator  to  a  special  fraudulent   provisions, 
influence  swaying  his  will,  work  testamentary  incapacity.^ 

But  the  influence  that  may  be  gained  by  a  "medium,"  or  by  one 
practising  on  visionary  and  sentimental  beliefs,  is  to  be  jealously 
scrutinized.^ 


1  Robinson  v.  Adams,  62  Me.  369  ; 
see  a  note  to  this  case,  Redfield's  Cases 
on  the  Law  of  Wills,  384 ;  La  Bau  v, 
Vanderbilt,  3  Redf.  N.  Y.  384 ;  Bonard's 
Will,  16  Abb.  (N.  Y.)  Pr.  N.  S.  128  ; 
Norton  v.  Relley,  2  Eden,  286  ;  Brown 
V.  Ward,  53  Md.  376. 

2  See  Lyon  v.  Home,  L.  R.  6  Eq. 
655.  In  this  case,  wherein  a  deed  of  gift 
without  consideration  was  given  by  an 
aged  widow  to  Home,  the  spiritualist, 
Gittord,  V.  C,  spoke  of  spiritualism  as 


being  "as  presented  by  the  evidence" 
(at  all  events),  "mischievous  non- 
sense, well  calculated,  on  the  one  hand, 
to  delude  the  vain,  the  weak,  the  fool- 
ish, and  the  superstitious  ;  and,  on  the 
other,  to  assist  the  projects  of  the  needy 
and  of  the  adventurer."  See  Norton 
V.  Relley,  2  Eden,  286. 

In  Smith's  Will, Wise.  Sup.  Ct.  1881, 
8  N.  W.  Rep.  602,  it  was  held  that  mere 
belief  in  spiritualism  does  not  by  itself 
incapacitate,  though  accompanied  with 

63 


§60.] 


MENTAL    UNSOUNDNESS   IN    ITS   LEGAL    RELATIONS. 


§  60.    We    may   therefore  hold,  in  accordance  with  the    tenor 
of  the  great  body  of   American  decisions,  as  well  as  with  those 


many  eccentricities.  From  the  opinion 
of  the  court  we  take  the  following  : 
"  The  deceased  was  a  person  of  vigorous 
intellect  and  will,  had  unbounded  faith 
in  the  accuracy  and  soundness  of  his 
own  j  udgment,  and  was  moved  to  action 
by  an  earnest,  sanguine  temperament. 
In  such  a  man  we  should  naturally 
expect  some  peculiarities  or  eccentrici- 
ties of  conduct,  but  we  find  fewer  of 
these  disclosed  in  the  evidence  than 
might  reasonably  be  looked  for.  It 
appears  that  for  a  short  time — perhaps 
two  or  three  months,  but  during  what 
year  is  not  shown — he  advertised  one 
of  his  callings  by  wearing  on  the  front 
of  his  hat  a  small  paper  on  which  were 
printed  the  words,  '  Solicitor  of  Pat- 
ents.' Also,  that  he  was  seen  at  dif- 
ferent times  on  skates  in  a  public 
street  of  the  city.  It  seems,  however, 
that  he  was  testing  a  new  kind  of  skate 
which  he  had  invented.  Thus  far  we 
find  no  evidence  that  the  deceased  was 
not  of  sound  mind  when  he  executed 
the  instrument  propounded  as  his  last 
will  and  testament.  But  there  was 
another  peculiarity  of  the  deceased 
which  will  now  be  considered.  He  was 
what  is  commonly  called  a  spiritualist. 
He  had  come  to  believe,  that  through 
certain  mediums,  he  could  communi- 
cate with  the  spirits  of  deceased  persons. 
He  received,  through  one  of  these  me- 
diums, what  purported  to  be  a  message 
from  his  deceased  wife,  advising  him 
to  marry  the  appellant,  to  whom  he 
was  then  paying  his  addresses.  He 
doubtless  believed  the  message  was 
from  his  deceased  wife.  He  also  con- 
sulted mediums  quite  frequently  con- 
cerning his  business  and  proposed  in- 
ventions. He  once  engaged  in  wheat 
speculations  on  advice  from  such 
sources.     At  first  he  was   successful, 

64 


but  later  operations  were  not  so  suc- 
cessful. It  does  not  appear  that  he 
persisted  in  these  speculations  very 
long  after  fortune  turned  against  him. 
Duriug  the  French  and  German  war 
he  believed  reports  of  the  condition  of 
the  contest  which  he  received  froin 
mediums,  although  different  from  the 
current  newspaper  reports.  But  when 
the  evidence  of  the  truth  of  the  news- 
paper reports  became  strong,  his  confi- 
dence in  the  infallibility  of  the  other 
reports  was  weakened.  He  received  a 
communication  purporting  to  be  from 
his  deceased  wife  after  his  last  mar- 
riage, and  after  he  had  ti'ouble  with 
some  of  his  children,  approving  of  what 
he  had  done.  This  was  evidently  after 
he  had  executed  his  will.  It  does  not 
appear  whether  or  not  he  regarded  the 
communication  as  genuine,  but  proba- 
bly he  did  so  regard  it.  But  the  in- 
tense faith  of  the  deceased  in  the 
accuracy  of  his  own  judgment  was  a 
counterpoise  to  his  belief  in  the  possi- 
bility of  obtaining  direct  messages  from 
the  other  world.  It  led  him  to  admit 
another  element  in  his  belief  which 
would  leave  him  free  to  follow  his  own 
judgment  in  a  given  case,  no  matter 
how  strongly  he  might  be  pressed  by 
supposed  supernatural  advice  or  en- 
treaty to  act  against  it.  So  he  came  to 
believe,  as  one  witness  states  it,  '  that 
there  was  more  than  one  kind  of  spirits 
— some  might  try  to  fool  him,  and  oth- 
ers might  not.'  It  is  perfectly  obvious 
from  the  whole  testimony  that  the  in- 
fallible test  which  he  applied  to  deter- 
■  mine  from  which  of  these  classes  of 
spirits  a  given  message  came  was  this  : 
If  it  accorded  with  his  judgment,  it 
came  from  the  reliable  class  ;  if  not, 
then  it  came  from  the  other  class  and 
was  to  be  disregarded." 


WILLS. 


[sS  60. 


Better  opin- 
ion, that 
delusions 
do  not  per 
se  destroy 
capacity. 


just  cited  of  Sir  J.  Nicholl  and  of  Chief  Justice  Cockburn,  that 
mental  unsoundness,  exhibiting  itself  in  insane  delusions 
collateral  to  the  subject  matter  of  the  will,  does  not  per 
se  destroy  testamentary  capacity.  Such  delusions  are, 
indeed,  incompatible  with  entire  sanity.  They  would 
destroy  any  will  made  under  their  influence.  They  can- 
not be  regarded  as  diseases  of  special  organs  exclusively,  but 
are  the  results  of  mental  disease  as  an  entirety.  But  they  may 
nevertheless  exist  in  a  mind  which  has  sufficient  intelligence  to  be 
invested  with  testamentary  power  in  respect  to  all  subjects  except 
those  on  which  such  delusions  usually  operate.^ 

Nor  should  it  be  forgotten  that  the  effects  of  such  incapacitation 
would  be  most  cruel  to  the  sufferer  himself.  Society  is  prone 
enough  to  make  eccentricities  and  weaknesses  the  subject  of  con- 


In  Bonard's  Will,  ut  supra,  the  testa- 
tor held  to  Pythagorean  doctrines, 
and,  dying  without  kindred,  left  his 
property  to  the  Society  for  Prevention 
of  Cruelty  to  Animals.  Held,  that  this 
was  not  evidence  of  insane  delusion, 
even  though  the  testamentary  intention 
might  not,  otherwise  than  for  the  alleged 
delusion,  have  heen  entertained. 

>  See  infra,  §§  125,  723,  740.  Dr. 
Hammond,  in  an  interesting  tract  on 
this  particular  question,  has  reached 
conclusions  which,  though  we  may  dis- 
sent from  some  of  his  postulates,  are  in 
entire  coincidence  with  the  present 
•  state  of  our  law.  The  results,  as  he 
states  them,  are  as  follows : — 

1.  That  there  is  a  form  of  insanity 
known  as  monomania,  which  is  charac- 
terized by  a  perversion  of  the  under- 
standing in  regard  to  a  single  object, 
or  a  limited  series  of  objects. 

2.  That  one  of  the  most  prominent 
features  of  this  species  of  insanity  is  a 
morbid  feeling  of  hatred  to  friends  and 
relatives,  and  a  disposition  to  do  them 
injury. 

3.  That  it  is  especially  a  symptom  of 
monomania  to  imbibe  delusions  which 
exercise  a  governing  influence  over  the 

VOL.  I. — 0 


mind  of  the  affected  individual,  and 
force  him  to  the  commission  of  acts 
which  in  a  state  of  sanity  he  would  not 
perpetrate. 

4.  That  the  monomaniac  has  power 
to  conceal  his  delusions,  and  to  arrest 
the  paroxysms  of  delirium  to  which  he 
may  be  subjected. 

5.  That  the  testator,  .James  C.  John- 
ston, was  affected  with  monomania ; 
that  he  had  conceived  a  dislike  to  his 
relatives  ;  that  he  was  subject  to  delu- 
sions in  regard  to  them  ;  that  he  was, 
in  consequence,  not  free  to  make  a  will 
such  as  he  would  have  made  had  he 
been  sane  ;  and  that  he  had  power  to 
conceal  his  delusions,  and  to  control 
his  paroxysms  of  delirium, 

6.  Tliat  there  could  not  possibly  have 
been  a  lucid  interval  when  the  will 
was  written,  signed,  acknowledged, 
and  reaffirmed,  because  all  these  acts 
show  a  continuance  of  the  delusions 
under  which  the  testator  labored. — In- 
sanity in  its  Medico-legal  Relations.  Opin- 
ion Relative  to  the  Testamentary  Ca- 
pacity of  the  late  James  C.  Johnston, 
of  Chowan  County,  North  Carolina. 
New  York,  1866.  See  also  Boardman 
I'.  Woodman,  47  N.  H.  120. 

65 


§  61.]        MENTAL    UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

tempt,  ridicule,  or  insult.  The  courts  should  be  cautious  how,  by 
taking  away  the  power  to  insure  respect,  they  thus  increase  the 
misfortune  of  a  class  into  which  no  man  can  assure  himself  he  may 
not  fall,  which  includes  almost  the  wdiole  of  those  whose  lot  it  is  to 
reach  extreme  old  age,  and  which  already  carries  a  burden  suffi- 
ciently heavy.  If  such  persons  cannot  reward  by  their  bounty 
those  by  whom  they  are  treated  with  tenderness,  and  by  whose 
means  their  comfort  is  guarded,  they  Avill  lose,  in  most  instances, 
the  only  means  remaining  to  them  of  self-preservation.  As  society 
at  present  stands,  the  only  remedy  seems  to  be  to  throw  the  same 
tender  guardianship  around  the  feeble-minded  and  the  eccentric  as, 
in  a  passage  elsewhere  cited,  has  been  so  touchingly  invoked  by 
Chancellor  Kent  for  the  old. 

III.    LUCID  INTERVALS.^ 

§  61.  Unless  what  in  the  courts  has  been  called  habitual  insanity 
Where  ^^  sliown,  /.  g.,  such  insanity  as  is,  in  its  nature,  continu- 

habitual        qus  and  chronic,  the  fact  of  the  existence  of  a  prior  period 

insanity  is  ■'■ 

shown,' lu-  of  lunacy  does  not  suffice  even  to  throw  the  burden  of 
vais  must  proof  on  the  party  setting  up  competency.^  The  case, 
be  proved,  however,  is  otherwise,  when  such  habitual  insanity  is 
shown  to  have  existed ;  in  which  case  the  presumption  is  that  the 
party  was  insane  at  the  time,  and  the  burden  is  on  those  seek- 
ing to  prove  the  contrary.^  "  If  you  can  establish,"  says  Sir  Wm. 
Wynne,  as  cited  by  Mr.  Jarraan,^  "  that  the  party  afflicted  habit- 
ually by  a  malady  of  the  mind  has  intermissions,  and  if  there  was 
an  intermission  of  the  disorder  at  the  time  of  the  act ;  that,  being 

1  See,  for  the  psychological  view  of  an,  3  Wash..  C.  C.  E,.  580 ;  Stevens  v. 
this  question,  infra,  §  744.  Vancleve,  4  Wash.  C.  C.  R.  262  ;  Frazer 

2  State  V.  Wellington,  58  Me.  453 ;  v.  Frazer,  2  Del.  Ch.  260  ;  Taylor  v. 
Lewis  V.  Baird,  3  McLean,  55  ;  Turner  Creswell,  45  Md.422  ;  Carpenter  r.  Car- 
V.  Rusk,  53  Md.  65;  Carpenter  v.  Car-  penter,  8  Bush.  283;  Rush  v.  Megee, 
penter,  8Bush,  283  ;  Acheyw.  Stephens,  36  Ind.  69  ;  State  v.  Reddick,  7  Kans. 
8  Ind.  411 ;  Menkins  v.  Lightner,  18  143  ;  White  v.  Wilson,  13  Ves.  87  ; 
111.  282  ;  Brown  v.  Riggin,  94  111.  560.  White  v.  Driver,  1  Phill.    84 ;  Hoge  v. 

3  Halley  v.  Webster,  21  Me.  461;  Fisher,  1  P.  C.  C.  R.  163;  Smith  i-. 
Clark  V.  Fisher,  1  Paige,  171 ;  .Jackson  Tebbitt,  L.  R.  1  P.  &  D.  398  ;  Ayrey  i;. 
V.  Vandusen,  5  Johns.  144 ;  Gombault  Hill,  2  Add.  206.  For  other  cases,  see 
V.  Public  Admr.,  4  Bradf.  226  ;  Harden  infra,  §§  246-269. 

V.  Hays,  9  Pa.  St.  151  ;  Aurentz  v.  An-  *  1  Jarm.  on  Wills,  5th  Am.  ed.,  Bige- 
derson,  3  Pitts.  310  ;  Harrison  v.  Row-     low,  *37,  R.  &  T.  72. 


WILLS.  [^  62. 

proved,  is  sufficient,  and  the  general  habitual  insanity  will  not  affect 
it ;  but  the  effect  of  it  is  this  :  it  inverts  the  order  of  proof  and  pre- 
sumption ;  for,  until  proof  of  habitual  insanity,  the  presumption  is, 
the  party  agent,  like  all  human  creatures,  was  rational;  but  when 
an  habitual  insanity  in  the  mind  of  the  person  who  does  the  act  is 
established,  then  the  party  who  would  take  advantage  of  the  fact  of 
an  interval  of  reason  must  prove  it."  And  in  a  Massachusetts  case, 
Dewey,  J.,  said,  "  neither  observation  nor  experience  shows  us  that 
persons  who  are  insane  from  the  effect  of  some  violent  disease,  do 
not  usually  recover  the  right  use  of  their  mental  faculties.  Such 
cases  are  not  unusual,  and  the  return  of  a  sound  mind  may  be  an- 
ticipated from  the  subsiding  or  removal  of  the  disease  which  has 
prostrated  their  minds.  It  is  not,  therefore,  to  be  stated  as  an 
unqualified  maxim  of  the  law,  '  once  insane,  presumed  to  be  always 
insane  ;'  but  reference  must  be  had  to  the  peculiar  circumstances 
connected  with  the  insanity  of  an  individual,  in  deciding  upon  its 
effects  upon  the  burthen  of  proof,  or  how  far  it  may  authorize  the 
jury  to  infer  that  the  same  condition  or  state  of  mind  attaches  to  the 
individual  at  a  later  period.  There  must  be  kept  in  view  the  dis- 
tinction between  the  inferences  to  be  drawn  from  proof  of  an  habitual 
or  apparently  confirmed  insanity,  and  that  which  may  be  only  tem- 
porary."^ 

§  62.  When  a  lucid  interval  is  set  up  as  the  period  in  which  a 
will  was  executed,  it  being  established  that  the  testator 
was  previously  habitually  insane,  it  is  necessary  to  show    ofdirposino- 
not  merely  a  cessation  of  the  more  violent  symptoms  of  ^^^^  ^'^st 

•^  ,  .  be  shown. 

the  disease,  but  a  restoration  of  the  faculties,  at  the  very 
period  of  such  execution.^     But  it  is  not  necessary  that  the  restora- 
tion be  to  a  state  of  mind  equal  to  that  originally  possessed  by  the 
patient.     It  is  enough  if  he  have  a  disposing  mind.^ 

'  Hix  V.  Whittemore,  4  Mete.  545.  Yes.  Jr.    605  ;    Holyland   ex  parte,  11 

See  Turner  v.  Rusk,  53  Md.  65  ;  Wil-  Ves.  Jr.  10 ;  Steed  v.  Galley,  1  Keen, 

liams  on  Exrs.,  6th  Am.  ed.,  34.  620  ;  Brogden  v.  Brown,  2  Add.  441  ; 

^  Halley   v.   Webster,    21   Me.   261 ;  Ayrey  v.  Hill,  2  Add.  206  ;  White  v. 

Ciombault   v.   Public   Admr.,  4  Bradf.  Driver,  1  Phill.  84;  Sutton  v.  Sadler, 

Sur.  226  ;  Boyd  v.  Eby,  8  Watts,  66  ;  3  C.  B  (N.  S.)  87.    See  infra,  §  246. 

Harden  r.  Hays,  9  Penn.  St.  151 ;  Gang-  Jar.  Wills,  5th  Am.  ed.,  R.  &  T.  77. 

ware's  Est.,  14  Penn.  St.  417  ;  Chandler  ^  See  cases  supra;  Clark  v.  Fisher, 

V.  Barrett,   21  La.  Ann.  58  ;   Rush  v.  1  Paige,  171  ;  Jackson  v.  Vandusen,  5 

Megee,  36  Ind.  69;  Hall  v.  Warren,  9  Johns.  144;  Lucas  v.  Parsons,  24  Ga. 

67 


§  64.]        MENTAL   UNSOUNDNESS   IN    ITS   LEGAL   RELATIONS. 

§  63.  Where  no  extraneous  influence  is  shown  to  have  been  ex- 
erted, the  character  of  the  act  itself,  as  will  soon  be 
character  of  noticed,  goes  far  to  determine  the  capacity  of  the  party 


act  affords 
presump- 


at  the  particular  time.  Thus  Dr.  Lushington  said  :^  "In 
tionof  tiie  opinion  of  a  very  great  judge.  Sir  William  Wynne, 

in  the  celebrated  case  of  Cartwright  v.  Oartwright,  he 
said  where  a  rational  act  was  done  in  a  rational  manner,  such  was 
the  strongest  and  best  proof  which  could  arise  even  as  to  a  lucid 
interval.  Now,  I  cannot  say  that  I  subscribe  altogether  to  this 
observation  of  Sir  William  Wynne,  for  I  do  not,  but  it  is  entitled  to 
great  weight ;  and,  to  a  certain  extent,  a  rational  act  done  in  a 
rational  manner,  though  not,  I  think,  the  strongest  and  best  proof 
of  a  lucid  interval,  does  contribute  to  the  establishment  of  a  lucid 
interval."  And,  generally,  the  rational  character  of  a  will,  ema- 
nating directly  from  a  testator  afflicted  with  insanity,  gives  in  itself 
a  strong  presumption  of  a  lucid  interval.^ 

§  64.  The  hypothesis  of  idiocy  is  negatived  by  proof  of  business 

capacity.  Thus  in  an  English  case  elsewhere  noted,  the 
idiocy  a  evidence  showed  that  the  deceased  was,  in  1815,  placed 
^^^^  '  in  confinement  as  an  idiot,  and  there  remained  till  1817, 

when  he  was  released.  In  1820,  about  which  time  he  was  proved 
to  have  committed  certain  rational  acts  of  business,  he  made  a 
rational  will.  In  1822,  he  was  again  placed  in  confinement,  and  so 
remained  till  his  death,  in  1849.  In  1833  he  was  found,  on  a 
commission,  to  have  been  of  unsound  mind,  without  lucid  intervals, 
since  1815.     The  will  was  sustained,  on  the  ground,  that,  though 

640 ;  Lilly  v.  Waggoner,  27  111.  395.  '  Bannatyne  v.  Bannatyne,  supra,  § 
But  where  a  party  is  assumed  to  be  in-  21.  See  Clark  v.  Fisher,  1  Paige,  171  ; 
sane  at  the  time  of  placing  a  holograph  Young  v.  Earner,  27  Gratt.  96  ;  Kings- 
will  among  his  valuable  papers,  there  bury  v.  Whitaker,  37  La.  Ann.  1055  ; 
must  be  clear  proof  of  his  retaining  it  Chambers  v.  Queen's  Proctor,  2  Curt, 
therein  in  a  lucid  interval,  to  give  it  415  ;  McAdams  v.  Walker,  1  Dow,  148, 
effect  as  a  valid  disposition  of  his  pro-  at  p.  178.  A  discharge  from  a  lunatic 
perty.  It  would  be  too  broad  to  say  asylum  is  prima  facie  evidence  of  resto- 
that  if  at  any  time  after  he  was  of  sound  ration.  Haynes  v.  Swann,  6  Heisk. 
mind,   and  then  retained  it  among  his  (Tenn.)  560. 

papers,  it  would  be  conclusive  that  he  ^  Nichols  v.  Binns,  1  Sm.  &  Tr.  239. 

intended  it  to  be  his  will.     Porter  v.  See  infra,  §  83. 
Campbell,  58  Tenn.  81.     See  infra,   § 
744. 

68 


WILLS. 


r§68. 


it  is  otherwise  with  regard  to  lunacy,  yet,  when  idiocy  is  set  up, 
it  is  disproved  by  contemporaneous  intelligent  acts  of  business.^ 

IV.    INTOXICATION. 

&  65.  As  has  been  already  shown,^  intoxication,  when    Drunken- 

1    .  1  •  ,  /.     ,.  nes8  to  de- 

complete,  renders  a  party  incompetent  to  make  a  binding    stroy  busi- 

contract,  although  a  contract  made  by  him  when  intoxi-    ciTy  mu^t" 

cated,  and  voidable  on  this  ground,  may  be  ratified  by   ^^  ':°^' 

him  when  sober. 

§  66.  On  the  same  principle  it  is  held  that  to  avoid  a  will  there 
must  be  proved  drunkenness  to   such    an  extent  as  to 
have  rendered  the  party  unconscious  of  what  he  was    ^y^fg^*^ 
doing.^     If  he  know  what  his  estate  consists  of,  and  Avho 
are  the  proper  objects  of  his  bounty,  the  mere  fact  that  he  is  under 
stimulants  at  the  time  of  making  the  will  does  not  affect  its  validity. 

§  67.  Where,  however,  in  addition  to  the  fact  that  the  party  was 
intoxicated  at  the   time,  he  was   then  under  the  influ- 
ence of  others,  a  degree  of  intoxication  sufficient  merely   fa^g^of  ™n- 

to    subiect  him   to   such  influence   may  be   ground  for    dueiaflu- 
.    .  .  ....  ence. 

avoiding  the   will,  although   such   intoxication,  without 

such  proof  of  undue  influence,  would  not  have  that  effect.* 

§  68.  Where,  again,  a  will  is  executed  under  the  influence  of 

drink  intentionally  and  fraudulently  administered,  it  is 

invalid,  by  the  operation  of  a  rule  already  noticed  with    jg  inten- 

regard  to  contracts  f  but  where  neither  fraud  nor  undue    ^°^e^^^ 

influence  is  shown,  actual  derangement  of  the  reasonino;   drunk,  will 

«,...!  ,  .  ,       is  void. 

faculties,  arising  from  undue  excitement,  must  be  estab- 
lished.    If  the  mere  existence  of  excitement  produced  by  stimulants 
be  held  to  vitiate  any  act  performed  during  its  continuance,  many 


'  Bannatyne  v.  Bannatyiie,  ut  supra. 

2  Supra,  §  16.  See  an  article  en- 
titled "  The  Quality  of  Mental  Opera- 
tions Debased  by  the  Use  of  Alcohol," 
by  T.  L.  Wright,  M.D.,  in  "  The  Alien- 
ist and  Neurologist."  St.  Louis,  July, 
1881. 

3  Shelford  on  Lunacy,  276  ;  Gardner 
V.  Gardner,  22  Wend.  526;  Peck  v. 
Carey,  29  N.  Y.  9  ;  Starrett  v.  Doug- 


lass, 2  Yeates,  48  ;  Andress  v.  Weller, 
3  N.  J.  Eq.  604  ;  Turner  v.  Cheeseman, 
15  N.  J.  Eq.  243  ;  Pancoast  v.  Graham, 
id.  294  ;  Pierce  v.  Pierce,  38  Mich.  412  ; 
Temple  v.  Temple,  1  Hen.  &  Munf. 
476 ;  Hebert  v.  Winn,  24  La.  Ann. 
346  ;  Key  v.  Holloway,  7  Baxt.  575  ; 
Gore  V.  Gibson,  13  M.  &  W.  623. 

*  Shelford  on  Lunacy,  274,  .304. 

5  Wheeler  v.  Alderson,  3  Hagg.  602. 

69 


§  70.J         MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

meritorious  wills,  whose  terms  are  peculiarly  calculated  to  maintain 
the  peace  and  well-being  of  a  family,  as  well  as  to  carry  out  the 
testator's  mature  intentions,  would  be  set  aside. 

§  69.  And  not  even  long  continued  habits  of  intoxication  will  of 
Habitual       themselves  afford  a  presumption  of  incapacity,  unless  the 

drunkard       testator  was  proved  to  have  been  so  drunk  at  the  time 

not  neces-  .  f.       i         ,  i    • 

sariiy  inca-    as  to  be  Ignorant  of  what  he  was  doing,  or  to  have  been 

paci  a  e  .      -Q^^ej.  undue  or  fraudulent  influence.     Unless  the  latter 

conditions  exist,  there  must  be  a  downright  incapacity,  an  entire 

loss  of  control  over  mind  and  body,  in  order  to  invalidate  a  wiil.^ 

§  70.  As  has  already  been  incidentally  shown,  the  fact  that  a 

,,  ,.  party  making  a  will  is  at  the  time  under  the  influence  of 
Mere  slim-      ^        -^  ^ 

uiation  stimulants  does  not  invalidate  the  wnll.     To  work  inca- 

does  not  .,.,,  ,~,  ,,.„. 

incapaci-       pacity  his  judgment  must  be  anected  or  his  affections  per- 

^  ^'  verted  by  the  stimulant.     The  reason  of  this  distinction 

between  drunkenness  and  insanity  is  well  pointed  out  by  Sir  John 
Nicholl.  Insanity,  he  argued,  may  often  be  latent,  whereas  there 
can  scarcely  be  such  a  thing  as  latent  ebriety  ;  and,  consequently, 
all  that  is  required  to  be  shown,  in  ordinary  cases,  is  the  absence 
of  excitement  at  the  time  of  the  act  done  ;  at  least,  the  absence  of 
excitement  in  any  such  degree  as  would  vitiate  the  act  done  ;  "for," 
he  said,  "  I  suppose  it  will  be  readily  conceded  that,  under  a  mere 
slight  degree  of  that  excitement,  the  memory  and  the  understanding 
may  be,  in  substance,  as  correct  as  in  the  total  absence  of  any  ex- 
citing cause.  Whether,  where  the  excitement  in  some  degree  is 
proved  to  have  actually  subsisted  at  the  time  of  the  act  done,  it  did 
or  did  not  subsist  in  the  requisite  degree  to  vitiate  the  act  done, 
must  depend,  in  each  case,  upon  a  due  consideration  of  all  the  cir- 
cumstances of  that  case  in  particular ;  it  belonging  to  a  description 
of  cases  that  admits  of  no  more  definite  rule,  applicable  to  the  de- 
termination of  them,  than  the  one  I  have  suggested,  that  I  am 
aware  of."^ 

»  Ayrey  v.  Hill,  2  Add.  206  ;  Gard-  N.  J.  Eq.  8  ;  Andress  v.  Weller,  3  N.  J. 

ner  V.Gardner,  22  Weud.  526;  Julke  Eq.   604;    Pierce   v.    Pierce,    38  Mich. 

V.   Adam,   1  Redf.  454;  McLaughlin's  412:  Black  v.  Ellis,  3  Hill  (S.  C.)  68. 

Will,  2  Redf.  504 ;  Thompson  v.  Kyner,  See,  also,  Shelford  ou  Lunacy,  276. 

65    Penn     St.    368;    Ritter's  App.   59  "  Ayrey  r.  Hill,  2  Add.  206;  S.  P. 

Penn.  St.  9  ;  "Whitenack  v.  Stryker,  2  Key  v.  Holloway,  7  Baxt.  575. 
70 


WILLS.  [§  72. 

§  71.  In  the  end,  however,  habitual  drunkenness  may  produce 
either  continued  insanity  or  an  imbecile  condition,  which 
renders  the  party  unfit  for  the  transaction  of  any  busi-    drunken- 
ness.    As  is  well  said  by  Harrington,  J.,  in  the  often   prodiSe^in- 
quoted  case  of  Duffield  v.  Morris,^  "  the  probable  cause    sanity  or 

.  .....        imbecility. 

of  insanity  often  affords  valuable  aid  m  determining  its 
character.  Drunkenness  is  itself  a  species  of  insanity  .  .  .  but 
long-continued  habits  of  intemperance  may  gradually  impair  the 
mind  and  destroy  the  memory  and  other  faculties,  so  as  to  produce 
insanity  of  another  kind.  .  .  .  The  form  of  insanity  usually  pro- 
duced by  intemperance  is  mania  ci  potu  or  delirium  tremens,  which 
is  a  raging  and  decided  insanity  that  cannot  be  mistaken,  temporary 
in  its  duration,  and  when  off  is  followed  not  only  by  a  lucid  inter- 
val, but  by  permanent  restoration  to  reason.  Yet  it  is  not  impro- 
bable that  drunkenness,  long-continued  or  much  indulged  in,  may 
produce  on  some  minds  and  with  some  temperaments  permanent  de- 
rangement, fixed  insanity."  Under  such  circumstances  capacity 
will  be  permanently  destroyed. 

§  72.  In  a  recent  (1878)  case  in  Michigan^  a  will  Avas  determined 
aerainst  by  a  iury  on  the  grounds  of  intoxication  and  un-   ,„ 

>=>      ^         J       >}      -J  o  Illustrative 

due  influence.     But  the  supreme  court  ordered  a  new    cases. 
trial,  partly  on  the  ground  that  the  jury  had  plainly  de-    pierce. 
cided  against  the  weight  of  the  testimony.  "Intoxication," 
said  Campbell,  C.  J.,  "is  a  term  capable  of  no  precise  definition,  and 
there  may  be  many  degrees  of  it.     If  it  exists  to  such  an  extent  as 
to  deprive  a  testator  of  the  power  of  controlling  his  conduct,  and 
knowing  what  he  is  about,  it  will,  of  course,  have  a  very  evident 
bearing  on  his  capacity.     But  if,  on  the  other  hand,  the  act  which 
he  does  is  one  which  his  intoxication  does  not  prevent  him  from 
doing  with  comprehension,  it  cannot  of  itself  avoid  it.  .   .  .  It  is 
not  impossible  for  a  person  more  or  less  intoxicated  to  make  a  will 
which  is  not  the  product  of  the  intoxication.   .   .   .  Inasmuch  as  it  is 
a  temporary  condition,  the  testimony  must  be  confined  to  the  time 
involved  in  the  transaction  in  controversy.     If  Pierce  was  not  over- 

•  2  Harr.  375.     See,  also,  Gardner  v.         2  pierce  v.  Pierce,  38  Mich.  412,  at 
Gardner,  22  Wend.  526;  M'Sorley  v.     p.  417. 
M'Sorley,  2   Bradf.   Sur.  188;    Kings- 
bury V.  Whitaker,  32  La.  Ann.  1055. 

71 


§  76.]         MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

come  by  drunkenness  when  he   made  his  will,  it  is  not  important 
what  his  condition  was  on  other  occasions." 

§  73.  In  a  trial  before  Lord  Campbell,  at  nisi  j^rius,  a  wilP  be- 
Handiey  v  ^^S  impeached  on  the  ground  the  testator's  mind  was  im- 
stacey.  paired  by  drinking,  it  appeared  that  the  testator  had 
been  frequently  drunk,  had  had  an  attack  of  delirium  tremens  a  few 
days  before  the  execution  of  the  will,  and  that  the  will  was  drawn 
by  a  son  of  the  principal  devisee,  at  the  latter's  house,  he  being  an 
old  friend  of  the  testator.  Lord  Campbell  ruled  that  the  question 
was  simply  whether  the  testator  was  sane  and  sensible  at  the  time 
of  making  the  will,  and  able  to  understand  its  contents.  If  so,  and 
if  the  will  was  his  spontaneous  act,  free  from  force  or  fraud,  it  was 
valid. 

§  74.  In  Peck  v.  Carey,  the  probate  was  contested  on  the  ground 
Peck  V.  ^^^^  ^h®  testator  was  intoxicated  at  the  time  the  will  was 

Carey.  niade.     The  case   came  before  the  court  of  appeals  in 

1863,  and  on  this  point  C.  J.  Denio  said:  "It  is  not  to  be 
understood  that  a  will  made  by  one,  who  is  at  the  time  under  the 
influence  of  intoxicating  liquor,  is,  for  that  reason,  void.  Intoxica- 
tion is  said  to  be  temporary  insanity.  The  brain  is  at  the  time 
incapable  of  performing  its  proper  functions ;  but  that  species  of 
derangement  ceases,  when  the  exciting  cause  is  removed,  and 
sobriety  brings  with  it  a  return  of  reason.  In  order  to  avoid  a  will 
made  by  an  intemperate  person,  it  must  be  proved  that  he  was  so 
excited  by  liquor,  or  so  conducted  himself  during  the  particular 
act,  as  to  be,  at  the  moment,  legally  disqualified  from  giving  effect 
to  it."2 
Use  of  §  '''S.  In  analogy  with  the  principles  stated  above,  it 

medicines      j^^^g  jjeen  held  that  mental  incapacity  on  the  part  of  the 
may  pro-  ^         "^  ^     '^ 

duce  inca-    testator,  when  produced  by  the  use  of  medicines,  is  suffi- 

pacity.  .  .         ,.  ,         ,  .        .„'' 

cient  to  mvalidate  his  will.-* 

V.  UNDUE  INFLUENCE  AND  FRAUD. 

§  76.  While  the  learned  judge  who  tried  Lord  Portsmouth's  case, 
which  has  just  been  cited,  came  to  the  conclusion  that  Lord  Ports- 

'  Handley  v.  Stacey,  1  F.  &  F.  574.    '  Lin  v.  Cobb,  85  111.  296.    See  an  article 

2  Peck  V.  Carey,  27  N.  Y.  17.  in  Am.  Journ.  of  Insanity  for  1872,  p. 

3  Stedham  r.  Stedliam,  32  Ala.  525  ;  13. 
Garrison  v.  Blanton,  48  Tex.  299  ;  Scan- 

72 


WILLS.  [§  76. 

mouth  was  of  "  unsound  mind,"  the  position  was  broadly  taken  by 
him  that  weakness  alone,  when  circumvented  by  fraud,    „ 

.  1  Fraud  act- 

would  be  sufficient  to  invalidate  even  so  solemn  a  contract   ing  on 

,  .,  .  .  .         ,  .       ,      .   .  .  .     weakness 

as  marriage,  and  on  this  position  his  decision  in  part  invalidates 
rested.  Still  more  unequivocal  was  the  decree  of  the  and^deed 
privy  council  in  dismissing  an  appeal  from  the  court 
of  chancery  of  the  Isle  of  Man,  setting  aside  two  deeds,  on  the 
ground  that  the  grantor  in  both  of  them  was  of  unsound  mind  at 
the  time  he  executed  them,  and  that  they  were  obtained  from  him 
by  fraud  and  undue  means.  The  evidence  showed  that  the  grantor, 
an  old  man,  feeble  both  in  body  and  mind,  separated  from  all  his 
relations,  without  a  friend  to  advise  him,  and  surrounded  by  those 
only  who  were  contriving  to  get  his  fortune,  conveyed  away  nearly 
all  that  he  was  possessed  of,  even  the  house  he  lived  in,  to  persons 
not  related  to  him,  either  by  blood  or  marriage  ;  and  all  his  estate 
in  lease  was  to  become  the  property  of  the  same  strangers  after  his 
death.  The  consideration  of  <£100  was  inserted  for  conveying 
away  property  worth  ,£1400  ;  and  this  was  not  to  be  paid  to  the 
grantor,  but  to  his  executor  after  his  death,  without  any  interest 
being  charged  on  it  in  the  mean  time.  Lord  Wynford,  in  giving 
the  opinion  of  the  privy  council,  said,  that  the  law  would  "  not  assist 
a  man  who  is  capable  of  taking  care  of  his  own  interests,  except  in 
cases  where  he  has  been  imposed  upon  by  deceit,  against  which 
ordinary  prudence  could  not  protect  him.  If  a  person  of  ordinary 
understanding,  on  whom  no  fraud  has  been  practised,  makes  an 
improvident  bargain,  no  court  of  justice  can  release  him  from  it. 
Inadequacy  of  consideration  is  not  a  substantial  ground  for  setting 
aside  a  conveyance  of  property.  But  those  who,  from  imbecility 
of  mind,  are  imcapable  of  taking  care  of  themselves,  are  under  the 
special  protection  of  the  law.  The  strongest  mind  cannot  always 
contend  with  deceit  and  falsehood ;  a  bargain,  therefore,  into  which 
a  weak  one  is  drawn  under  the  influence  of  either  of  these,  ought 
not  to  be  held  valid,  for  the  law  requires  that  good  faith  should  be 
observed  in  all  transactions  between  man  and  man.  If  this  con- 
veyance could  be  impeached  on  the  ground  of  the  imbecility  of  the 
grantor  only,  a  sufficient  case  has  not  been  made  out  to  render  it 
invalid;  for  the  imbecility  must  be  such  as  to  justify  the  jury, 
under  a  commission  of  lunacy,  in  putting  his  property  and  person 
under  the  protection  of  the  chancellor ;  but  a  degree  of  weakness  of 

73* 


§  77.]        MENTAL    UNSOUNDNESS   IN   ITS    LEGAL   RELATIONS. 

intellect  far  below  that  which  would  justify  such  a  proceeding , 
coupled  with  other  circumstances  to  show  that  the  weakness,  such  as 
it  was,  had  been  taken  advantage  of,  will  be  sufficient  to  set  aside 
any  important  deedT^  This  same  view  has  been  uniformly  acted 
on  in  the  English  and  American  courts,  and  it  is  expressed  bj  Mr. 
Justice  Story  with  his  usual  felicity.^  "  The  acts  and  contracts  of 
persons  who  are  of  weak  understandings,  and  who  are  thereby  liable 
to  impositions,  will  be  held  void  in  courts  of  equity,  if  the  nature 
of  the  act  or  contract  justify  the  conclusion,  that  the  party  has  not 
exercised  a  deliberate  judgment,  but  has  been  imposed  upon,  cir- 
cumvented, or  overcome  by  cunning  or  undue  influences."^  But, 
when  articles  furnished  are  suitable  necessaries,  the  estate  of  a 
person  of  weak  mind  is  liable,  if  there  be  no  fraud.* 

§  77.  With  even  greater  emphasis  has  the  same  doctrine  been 
Still  more  announced  by  courts  of  law  in  respect  to  wills.  Pecu- 
so  wills.  liarly  liable  as  is  a  dying  man,  even  though  his  intellect 
be  of  average  strength,  to  have  his  comfort  destroyed,  if  not  his 
purpose  overturned,  by  those  in  whose  society  he  is  placed,  the 
policy  of  the  law  has  anxiously  sought  for  every  safeguard  by 
which  such  intrusions  upon  the  sanctity  of  dissolution,  as  well  as 
upon  the  rights  of  families,  can  be  deprived  of  motive.  "  The 
same  memory  for  the  making  of  a  will,"  agreed  all  the  judges  of 
England  at  an  early  date,  "  is  not  at  all  times  when  the  party  can 
answer  to  anything  with  sense,  but  he  ought  to  have  judgment  to 
discern  and  to  be  of  perfect  memory,  otherwise  the  will  is  void."^ 
"  He  ought  to  have  a  disposing  memory,"  said  Lord  Coke,  "  so 
that  he  is  able  to  make  a  disposition  of  his  lands  with  understand- 
ing and  reason ;  and  that  is  such  a  memory  as  the  law  calls  sane 
and  perfect."^     While,  therefore,  it  is  only  necessary  that  there 

'  Blackford  v.  Christian,  1  Knapp,  is   thus   put  by   Judge    Washington : 

73  ;  Shelford  on  Lunacy,  272.  "  Had  he  a  disposing  memory — was  he 

2  1  Story  Eq.  Juris.  §  238.  capable  of  recollecting  the  property  he 

'  See  also  1  Fonbl.  Eq.  B.  1,  ch.  2,  was  about  to  bequeath,  the  manner  of 

§  3  ;  Holland  v.  Miller,  12  La.   Ann,  distributing  it,  and  the  objects  of  his 

624.  bounty  ?"  (Stevens  v.  Vancleve,  supra, 

*  Skidmore    v.    Romaine,    2    Bradf.  §  25    and   note).     Proof,    however,  of 
Sur.  122.  intellect  having  been  impaired  by  dis- 

5  Combe's  case,  Moore,,  759.  ease,  or  of  intellectual  feebleness  alone, 

*  Marquis   of  Winchester's    case,    6     will    not    avail    by  itself  to    defeat  a 
Rep.  23a  ;  2  Buls.  211.    The  same  point     will,  when  adequate  capacity  remains. 

74 


WILLS. 


[§77. 


should  be  the  capacity  of  reasonable  disposition,  great  jealousy  has 
been  exercised  for  the  correction  of  extraneous  influence  on  the 
testator.  Thus  wills  have  been  set  aside  when  they  were  preceded 
by  over-iraportunity  of  friends  standing  in  confidential  relations,^ 
where  the  housekeeper  and  physician  were  shown  to  have  earnestly 
urged  a  non-natui-al  scheme  of  distribution  f  where  the  wife  in  fact 
dictated  the  will,  the  testator  being  at  the  time  unable  to  speak, 
she  pretending  to  understand  him,  and  making  herself  the  sole 
devisee  for  life,  and  imposing  as  a  devisee  in  remainder  a  fictitious 
niece  f  where  one  relation  produced  the  disinheritance  of  another 
by  false  representations  as  to  his  character  ;^  where  the  testator  was 
old  and  feeble,  and  the  will  was  n'^'de  under  the  directions  and  to 
suit  the  purposes  of  a  colored  woman  in  the  family;  and  where  a 
husband  exercised  coercion.^  In  short,  whenever  the  provisions  of 
a  will  are  inconsistent  with  natural  justice,  it  will  require  strong 
proof  of  capacity  and  volition  to  sustain  it,  and  slight  proof  of  undue 
influence  or  fraud  to  set  it  aside. ^     To  authorize  a  will  in  favor  of 


Sloan  V.  Maxwell,  2  Green  Ch.  563; 
Andress  v.  Weller,  ibid.  604;  Dornick 
V.  Reichenback,  10  S.  &  R.  84.  The 
cases  will  be  found  enumerated  in  1 
Powell  on  Devises,  127  ;  Shelford  on 
Lunacy,  275-6  ;  4  Kent's  Com.  566  ;  1 
Jarman  on  Wills,  28.  See,  also.  Con- 
verse V.  Converse,  21  Vt.  168  ;  Home 
V,  Horne,  9  Ired.  99  ;  Harrison  v. 
Rowan,  6  W.  C.  C.  R.  580  ;  Grabill  v. 
Barr,  5  Penn.  St.  441  ;  Den  v.  Johnson, 
4  N.  J.  L.  454;  Kinne  v.  Kinne,  9 
Conn.  102;  Ford  v.  Ford,  7  Humph. 
92 ;  Howard  v.  Coke,  7  B.  Mon.  665  ; 
Blanchard  v.  Nestle,  3  Denio,  37 ; 
Modern  Probate  of  Wills,  91.  In  Scot- 
land an  arbitrary  test  is  applied,  it 
being  there  provided  that  no  settle- 
ment or  gift  executed  after  the  com- 
mencement of  the  disease  of  which  a 
person  dies,  except  those  in  the  ordi- 
nary administration  of  the  estate,  shall 
be  valid.  If  the  testator  survives  sixty 
days  afterwards,  or  has  been  to  mar- 
ket unsupported,  the  will  is  validated. 
Bell's  Diet.  "Death  Bed  " 


'  Hacker  v.  Newborn,  Style,  427 ; 
Bates  V.  Bates,  27  Iowa,  110. 

2  Fearon  ex  ■parte,  5  Ves.  Jr.  633. 

3  Scribner  n.  Crane,  2  Paige  C.  C.  R. 
147. 

*  Dietrick  v.  Dietrick,  5  S.  &R.  207  ; 
Nussear  v.  Arnold,  13  S.  &  R.  323; 
Patterson  v.  Patterson,  6  S.  &  R.  54. 

6  Denton  v.  Franklin,  9  B.  Mon.  28 
e  Marsh  v.  Tyrrell,  2  Hag.  Ecc.  84 

7  Brydges  v.  King,  1  Hag.  Ecc.  R 
256  ;  Rollwagen  v.  Rollwagen,  63  N.  Y 
504  ;  Kinne  v.  Johnson,  60  Barb.  69  ; 
Brick  V.  Brick,  66  N.  Y.  144 ;  Snyder 
V.  Sherman,  23  Hun,  139  ;  Baker  v. 
Lewis,  4  Rawle,  356  ;  Bitner  v.  Bitner, 
65  Penn.  St.  347  ;  Goble  v.  Grant,  3  N. 
J.  Eq.  629  ;  Lyons  v.  Van  Riper,  26  N. 
J.  Eq.  337  ;  Cadwallader  v.  West,  48 
Mo.  483  ;  Tobin  v.  Jenkins,  29  Ark. 
151.  In  a  case  in  Connecticut  D.  gave 
$4000  out  of  $14,000  to  relatives,  and 
the  rest  to  a  church.  The  will  was 
drawn  by  H.  who  was  a  vestryman  of 
the  church,  and  who  was  left  sole  exe- 
cutor.    D.'s  family  were  not  notified 

75 


§  77.]        MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

a  wife,  however,  to  be  set  aside,  the  influence  alleged  to  have  been 
exerted  must  be  shown  to  have  reached  coercion,  impairing  the 
husband's  free  agency,^  or  fraud  must  be  proved.^  In  ordinary 
cases  also,  it  will  not  be  enough  to  prove  mere  influence,  without 
proof  of  fraud  or  contrivance,  or  such  coercion  as  destroys  free 
agency.  "  Honest  intercession  and  persuasion,"  "  and  fair  and 
flattering  speeches,"  though  abundantly  proved  to  have  been  used, 
do  not  afiect  the  instrument's  validity.^  The  fact  of  the  paper 
being  entirely  in  a  party's  handwriting  gives  a  strong  presumption 
of  cotemporaneous  sanity,  which  is  not  effaced  by  proof  of  generally 
impaired  intellect,  nor  by  the  fact,  that,  when  the  paper  is  a  will,  it 
is  marked  by  omissions  of  property.*  The  same  presumption  exists 
when  the  testator  has  a  distinct  recollection,  at  the  time  of  the 
execution  of  the  will,  of  the  terms  he  directed  at  the  time  it  was 
prepared.^ 


of  his  dangerous  illness  till  after  tlie 
execution  of  tlie  will,  whicli  was  wit- 
nessed by  H.  and  another  vestryman 
and  H.'s  brother-in-law,  and  which 
misdescribed  certain  relatives  of  D. 
Held,  that  these  were  circumstances  re- 
quiring explanation  on  the  part  of  the 
propounders  of  the  will,  and  that  the 
jury  might  consider  the  question  of 
undue  influence  without  any  direct 
proof  of  such  influence.  Hovey  and 
Pardee,  J.J.,  dissenting.  Drake's  App., 
45  Conn.  9. 

1  Barnes  v.  Barnes,  66  Me.  286 
Clark  V.  Sawyer,  3  Sandf.  Ch.  351 
Gardner  v.  Gardner,  22  Wend.  526 
see  Rollwagen  v.  Rollwagen,  63  N.  Y. 
504,  for  a  case  where  there  was  such 
coercion  and  fraud ;  Bicknell  v.  Bick- 
nell,  2  T.  &  C.  96  ;  Zimmerman  v.  Zim- 
merman, 23  Penn.  St.  375  ;  Hopple's 
Est.,  7  W.  N.  C.  (Pa.)  523  ;  Pingree  r. 
.Jones,  80  111.  177  ;  Tingley  r.  Cowgill, 
48  Mo.  291 ;  Rankin  v.  Rankin,  61  Mo. 
295 ;  Boyse  v.  Rossborough,  6  H.  L.  C. 
47;  1  Redf.  Wills,  chap.  x.  section  2  ; 
Wisener  v.  Maupin,  58  Tenn.  342.  See 
Stultz  V.  Schaeffle,  16  .Jur.  909  ;  18  Eng. 
L.  &  Eq.  576. 

76 


2  Scribner  v.  Crane,  2  Paige,  147. 

3  In  general,  the  persuasion  and  in- 
fluence of  friends  and  attendants  are 
not  such  as  to  properly  constitute  un- 
due influence.  Hoge's  Will,  2  Brewst. 
(Pa.)  450  ;  Williams's  Est.,  8  W.  N.  C. 
(Pa.)  202;  Gleespin  in  re,  26  N.  J. 
Eq.  523 ;  Hughes  v.  Murtha,  32  N.  J. 
Eq.  288  ;  Eddy's  Case,  id.  701 ;  Chand- 
ler V.  Ferris,  1  Harr.  (Del.)  454 ;  Sut- 
ton V.  Sutton,  5  Harr.  459  ;  Sechrest 
V.  Edwards,  4  Mete.  (Ky.)  163  ;  Har- 
rison's Will,  1  B.  Mon.  351 ;  Lucas  v. 
Cannon,  13  Bush,  650  ;  Roe  v.  Taylor, 
45  111.  485  ;  Yoe  v.  McCord,  74  111.  33 ; 
Allmon  r.  Pigg,  82  111.  149  ;  Mclntyre 
V.  McConn,  28  Iowa,  480;  Rabb  v. 
Graham,  43  Ind.  1 ;  Gilreath  v.  Gil- 
reath,  4  Jones'  Eq.  (N.  C.)  142 ;  Mc- 
Daniel  v.  Crosby,  19  Ark.  533  ;  Jack- 
man's  Will,  26  Wis.  104;  Carroll's 
Will,  50  Wis.  437.  Even  importunate 
persuasion  is  not  undue  influence. 
Tawney  v.  Long,  76  Penn.  St.  106. 

*  McDaniel's    Will,    2  J.  J.  Marsh. 
331  ;  Fulleck  v.  Allison,  3  Hagg.  527. 
5  Hathorn  v.  King,  8  Mass.  371. 


WILLS. 


[§79. 


§  78.  In  an  issue,  tried  in  Pennsylvania  in  1862,  on  the  validity 
of  a  writing  purporting  to  be  a  will,  a  party  set  up  as  a    jjndu 
defence  great  imbecility  in  the  testatrix,  and  undue  influ-    influence 
ence    and   actual   duress.     The    case   came   before  the    amount  to 
supreme  court  on  a  writ  of  error,  and  on  the  point  of  ^°°^  ^^^^  ' 
undue  influence  Judge  Strong  said:   "  ISTow,  that  is  undue  influence 
which  amounts  to  constraint,  which  substitutes  the  will  of  another 
for  that  of  the  testator."     "  It  may  be  either  through  threats  or 
fraud,  but,  however  exercised,  it  must,  in  order  to  avoid  a  will,  de- 
stroy the  free  agency  of  the  testator  at  the  time  when  the  instrument 
is  made."^ 

So,  in  Alabama,  it  has  been  said,  that  to  set  aside  a  will  on  the 
ground  of  undue  influence,  it  must  be  shown  that  the  influence  ex- 
erted on  the  mind  of  the  testator  was  equivalent  to  moral  coercion, 
and  constrained  him,  through  fear,  the  desire  of  peace,  or  some 
other  feeling  than  affection,  to  do  that  which  was  against  his  will.^ 

§  79.  The  question  is  not  one  of  undue  influence,  for  if  so,  there 
are  few  wills  which  would  not  be  put  in  peril.     A  testator  is  natu- 


1  Eckert  v.  Flowry,  43  Penn.  St.  46. 

2  Hall  V.  Hall,  38  Ala.  131.  Undue 
influence  must  amount  to  a  moral  con- 
straint, destroying  free  agency.  Barnes 
r.  Barnes,  66  Me.  286  ;  Breed  v.  Pratt, 
18  Pick.  115  ;  Shailer  v.  Bumstead,  99 
Mass.  112 ;  Comstock  v.  Hadlyme,  8 
Conn.  261 ;  Gardiner  v.  Gardiner,  34 
N.  Y.  155;  Brick  v.  Brick,  66  N.  Y. 
144;  Children's  Aid  Soc'y  v.  Love- 
ridge,  70  N.  Y.  387  ;  Horn  v.  Pullman, 
72  N.  Y.  269  ;  Kinne  v.  Johnson,  60 
Barb.  69  ;  Hazard  v.  Hefford,  2  Hun, 
445  ;  Snyder  v.  Sherman,  23  Hun,  139  ; 
Seguine  v.  Seguine,  4  Abb.  (N.  Y.) 
App.  Dec.  191 ;  Marvin  v.  Marvin,  3  id. 
192  ;  Burk's  Will,  2  Redf.  239  ;  Booth 
V.  Kitchen,  3  Redf.  52  ;  Lynch  v.  Clem- 
ents, 24  N.  J.  Eq.  431 ;  Browne  v.  Mol- 
liston,  3  Whart.  129  ;  McMahon  v.  Ryan, 
20  Penn.  St.  329  ;  Thompson  v.  Kyner, 
65  Penn.  St.  368;  Tawney  v.  Long,  76 
Penn.  St.  106  ;  Hopple's  Est.,  7  W.  N. 
C.   523;    Chandler  v.   Ferris,    1    Harr. 


(Del.)  454  ;  Higgins  v.  Carlton,  28  Md. 
115;  Tyson  v.  Tyson,  37  Md.  567; 
Griffith  V.  DiflfenderfiFer,  50  Md.  466  ; 
Monroe  v.  Barclay,  17  0.  St.  302  ;  Rabb 
V.  Graham,  43  Ind.  1  ;  Harrington  r. 
Stees,  82  111.  50  ;  Allmon  r.  Pigg,  id. 
149  ;  Sechrest  v.  Edwards,  4  Mete.  (Ky.) 
163  ;  Marshall  v.  Flinn,  4  Jones  (N.  C.) 
L.  199  ;  Wright  v.  Howe,  7  Jones  L. 
412  ;  Lee  v.  Lee,  71  N.  C.  139  ;  O'Neall 
V.  Farr,  1  Rich.  80  ;  Harrel  v.  Harrel, 
1  Duv.  203  ;  Thompson  r.  Davitte,  59 
Ga.  472  ;  Leverett  v.  Carlisle,  19  Ala. 
80  ;  Pool  V.  Pool,  35  Ala.  12  ;  Leeper  v. 
Taylor,  47  Ala.  221  ;  Rogers  v.  Dia- 
mond, 13  Ark.  474  ;  McDaniel  v.  Cros- 
by, 19  Ark.  533  ;  Tobin  r.  Jenkins,  29 
Ark.  151 ;  Williams  r.  Goude,  1  Hagg. 
577  ;  Parfitt  r.  Lawless,  L.  R.  2  P.  &  D. 
462 ;  Purdon  r.  Longford,  L.  R.  11  Ir. 
C.  L.  269  ;  Stultz  v.  Schaeffle,  18  Eng. 
L.  &  Eq.  576.  And  it  must  be  connected 
with  the  document.  Todd  v.  Fenton, 
66  Ind.  25. 

77 


§  80.]        MENTAL    UNSOUNDNESS    IN   ITS   LEGAL    RELATIONS. 

rally  more  or  less  influenced  by  those  about  him.     Selfishness  may 
lead  them  to  attempt  to  influence  him  in  their  favor ;  or 
one  of  a  feeling  of  chivalric  generosity  may  induce  those  who 

to^esist  ^^®  ^^  home  to  unduly  promote  the  interests  of  the  ab- 
sent. Rich  men,  also,  are  beset  by  numerous  applicants 
for  aid,  some  of  whom  are  importunate,  and  often  present  their 
claims  unfairly.  If  wills  were  set  aside  because  such  influences 
were  applied,  the  privilege  of  testamentary  disposition  would  be 
seriously  impaired.  The  question  is,  therefore,  not  whether  there 
were  influences  about  the  testator  which,  if  not  resisted,  would  un- 
duly sway  him,  for  there  is  no  testator  about  whom  there  are  no 
such  influences  ;  but  whether  the  testator  had  capacity  to  resist 
such  influences.  If  he  had  not,  then  the  will,  supposing  the  influ- 
ences to  have  been  applied,  must  fail  at  least  ^ro  tanto} 

§  80.  Mere  mental  debility,  caused  by  sickness  or  extreme  old 

age,  does  not  itself  justify  the  conclusion  that   undue 

weakness      influence  has  been  submitted  to.     "  It  is  argued,"  said 

prove'^uL      Mullin,  J.,  in  a  case  in  New  York,  in  1862,^  "  that  while 

dueinflu-      a  man's  intellect  may  not  be  so  weak  as  to  render  him 

ence.  .  ... 

incapable  of  making  a  will,  yet  it  may  be  in  that  feeble 
state  that  he  readily  and  easily  becomes  the  victim  of  the  improper 
influences  of  such  imprincipled  and  designing  persons  as  see  fit  to 
practise  on  him.  The  proposition  is  doubtless  correct,  but  mere 
weakness  does  not  prove  undue  influence.  There  must  be  some 
evidence  of  the  influence,  and  of  its  improper  exercise,  to  justify  the 
rejection  of  a  will  on  that  ground." 

^  Glover  v.  Hayden,  4  Cush.  580  ;  St.  46.  Hence  it  must  be  shown  that 
Baldwin  v.  Parker,  99  Mass.  79  ;  Hunt  the  undue  influence  took  effect.  See 
V.  Hunt,  116  Mass.  237  ;  Davis  v.  Davis,  Jarman  on  Wills,  Randolph  &  Talcott's 
123  Mass.  590  ;  May  v.  Bradlee,  127  note,  733,  and  cases  there  cited ;  Kin- 
Mass.  414 ;  Wait  v.  Breeze,  18  Hun,  leside  v.  Harrison,  2  Phill.  449  ;  Boyse 
403  ;  Hughes  v.  Murtha,  32  N.  J.  Eq.  v.  Rossborough,  6  H.  L.  C.  47 ;  Com- 
288;  Wainwright's  App.,  89  Penn.  St.  stock  v.  Hadlyme,  8  Conn.  261;  Roll- 
220  ;  Clark  v.  Stausbury,  49  Md.  346  ;  wagen  v.  Rollwagen,  63  N.  Y.  504 : 
Pierce  v.  Pierce,  38  Mich.  412;  Hub-  Brick  i-.  Brick,  6Q  N.  Y.  144;  Eckert 
bard  v.  Hubbard,  7  Oregon,  42.  v.  Flowry,  43  Penn.  St.  46  ;  Leverett 

2  Reynolds  v.  Root,  62  Barb.  250,  at  y.  Carlisle,  19  Ala.  80. 
p.   253  ;   Eckert  v.  Flowry,  43  Penn. 

78 


WILLS.  [§  81. 

VI.    PRESUMPTIONS. 

1.  From  act  and  surroundings. 

§  81.  It  must  be  remembered  that  the  justice  of  testamentary 
dispositions  is  to  be  determined  from  the  testator's  stand- 
point, not  from  the  standpoint  of  the  adjudicating  tribu-    ^°n^nfa*^7°^ 
nal.     Provisions  which  may  strike  us  as  very  uniust,  may    indicate 

"^  ,       .  .  incapacity. 

have  seemed  just  to  the  testator,  and  might  seem  just  to 
us  if  we  were  possessed  of  all  the  facts  of  which  he  was  possessed. 
Notions  of  justice  also  vary  as  much  as  do  the  conceptions  of  facts 
to  which  these  notions  are  applied.  To  one  mind  it  may  seem  very 
unjust  to  give  a  preference  to  an  older  son ;  to  another  it  would 
appear  that  daughters  should  be  preferred,  as  the  most  helpless ;  to 
another,  bequests  to  collateral  relatives  may  seem  a  matter  of  duty ; 
to  another  it  may  appear  a  matter  of  duty  to  give  largely  to  educa- 
tional and  religious  institutions.  The  law,  in  reserving  to  all  sane 
persons  the  right  of  testamentary  disposition,  and  in  declining  to 
establish  a  universal  compulsory  rule  for  the  disposition  of  property 
after  death,  recognizes  a  variety  of  judgment  among  sane  persons 
as  to  the  way  their  property  should  be  distributed.  That  a  will  is 
not  the  kind  of  will  that  the  adjudicating  tribunal  would  make,  is 
therefore  no  reason  for  setting  it  aside.  On  the  other  hand,  it  is 
a  sufficient  reason  for  setting  aside  a  will  that  it  contains  provisions 
whose  monstrosity  can  only  be  explained  on  the  hypothesis  of  insan- 
ity or  of  submission  to  undue  influence.^  In  cases  not  of  so  extreme 
a  type,  inequality  of  disposition  is  not  enough  to  warrant  the 
setting  aside  of  a  will  on  the  supposition  of  undue  influence;  there 

'  See  Parfitt  v.  Lawless,  L.  R.  2  P.  &  admissible   to   show  the   state   of  his 

D.  462;  Horn  v.   Pullman,   72  N.  Y.  mind,  see  1  Redf.  on  Wills,  oh.  x.  sec- 

269  ;  Cudney  v.  Cudney,  68  N.  Y.  148  ;  tion  iii.      The  following  additional  au- 

Booth  V.  Kitchen,  3  Redf.  (N.  Y.)  52  ;  thorities  may  be  referred  to  :   May  v. 

Higgins  V.  Carlton,  28  Md.  115;  Kevil  Bradlee,  127  Mass.  414;  Canada's  App., 

V.  Kevil,  2  Bush,  614  ;  Carpenter  v.  Cal-  47  Conn.  450  ;  GrifiSth  v.  Diflfenderflfer, 

vert,  83  111.  62 ;  Tingley  v.  Cowgill,  48  50  Md.  466  ;  Dennis  v.  Weekes,  51  Ga. 

Mo.  290;  Thomas  V.  Stump,  62  Mo.  275;  24;  Lucas  t-.  Carman,  13  Bush,  650; 

Convey's  Will,  52  Iowa,  197.     But  see  Reynolds  v.  Adams,  90  111.  134;  Todd 

Fulton  V.  Andrews,  L.  R.  7  H.  L.  Cas.  v.  Fenton,  66  Ind.  25  ;  Convey's  Will, 

448.     Courts  may  go  too  far  in  the  en-  52  Iowa,  197  ;  Muller  v.  The  Assoc,  5 

deavor  to  stand  in  the  testator's  place.  Mo.    App.  390 ;    Mooney  v.  Olsen,   22 

That    the   testator's   declarations   are  Kan.  69. 

79 


§  82.]      MENTAL   UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 

must  be  independent  proof  that  such  influence  has  been  applied.^ 
But  always  as  one  of  the  factors  in  determining  a  case,^  the  gross 
inequality  of  a  will  may  be  considered,  and  if  undue  influence 
be  shown  aliunde,  the  disinheritance  of  those  entitled  by  nature 
to  the  testator's  estate  may  be  taken  to  be  the  eftect  of  that  influ- 
ence.^ 

§  82.  It  has  been  already  noticed  that  a  will  will  not  be  set  aside 
Inference  simply  because  the  testator  was  subjected  to  influence, 
from  abuse  even  amounting  to  importunity,  supposing  that  he  had 
tiai  reia-  capacity  to  resist  this  influence,  and  was  not  the  victim 
ip.  ^^  coercion  or  fraud.  If  either  coercion  or  fraud  be 
shown,  the  will  must  fall.,^  And  when  a  party  claiming  under  a 
will  is  shown  to  have  possessed,  from  confidential  relations,  undue 
influence  over  a  testator,  such  party  has  the  burden  on  him  of 
showing,  supposing  that  this  influence  was  exerted  for  his  own 
benefit,  that  he  acted  fairly,  and  that  the  testator  acted  freely.  It 
is  true  that  in  a  recent  English  case,^  where  a  priest,  the  confessor 
and  chaplain  of  the  testatrix,  was  left  all  her  property,  and  was 
made  executor,  Lord  Penzance,  upon  a  rule  nisi  for  a  new  trial 
being  argued,  drew  a  distinction  between  the  presumption  in  the 
case  of  gifts  inter  vivos,  in  favor  of  parties  standing  in  a  certain 
relation  to  the  donor,  and  in  the  case  of  testamentary  gifts  in  favor 
of  the  same  parties.  In  the  first  case,  the  presumption,  he  held,  is 
that  these  parties  have  used  undue  influence,  and  on  them  lies  the 
burden  of  proof,  while  a  stranger  is  not  required  to  show  that  the 
donor  was  uninfluenced  ;  while  in  the  second  case  the  presumption 
disappears  against  the  parties  standing  in  the  confidential  relation. 

•  Cudney  v.  Cudney,   68  N.  Y.   148.  Hun,  139.     That   any    circumstances, 

But  see  Fulton  v.  Andrews,  L.  R.  7  H.  ho-wever  slight,  will  be  admitted,  see 

L.  C.  448,  contra.  Clark    v.    Stansbury,    49    Md.    346  ; 

2  Any  circumstances  may  be  consid-  Mooney  v.  Olsen,  22  Kan.  69.     And  it 

ered  which  lead  to  the  inference  of  un-  is   said  that  wherever  suspicious  cir- 

due  influence.     Barnes  v.  Barnes,  66  cumstances,  pointing  to  undue  influ- 

Me.  286  ;   Marvin  v.  Marvin,   3  Abb.  ence,  exist,  it  is  due  to  the  parties  to 

App.  Dec.  (N.  y.)  192;  Rutherford  v.  frame  an  issue  for  a  jury.    Reynolds  v. 

Morris,    77   111.    397  ;    Cadwallader  v.  Root,  62  Barb.  250. 

West,   48  Mo.  483.     But  the  circum-  »  Clark  v.  Fisher,  1  Paige,  171. 

stances  must  be  such  as  to  lead  logically  "•  Bundy  v.  McKnight,  48  Ind.  502. 

to  that  inference.     Brick  v.  Brick,  66  ^  Parfitt  v.  Lawless,  L.  R.  2  P.  &  D. 

N.   Y.    144;    Snyder  v.    Sherman,   23  462. 
80 


WILLS. 


[§82 


''  The  natural  influence,"  he  said,  "  of  the  parent  or  guardian  over 
the  child,  or  the  husband  over  the  wife,  or  the  attorney  over  the 
client,  may  lawfully  be  exerted  to  obtain  a  will  or  legacy,  so  long 
as  the  testator  thoroughly  understands  what  he  is  doing  and  is  a 
free  agent."^  In  such  cases  the  party  benefited,  he  held,  must 
show,  affirmatively,  that  the  other  party  could  have  formed  a  free 
and  intelligent  judgment  in  the  matter.^  To  the  extent  of  allowing 
the  wife,^  husband,  parent,  or  child  to  exert  influence,  the  American 
cases  approve  of  this  ruling.  To  persons  standing  in  these  relations 
the  estate  of  the  testator  should  naturally  descend,  and  so  long  as 
the  testator's  mind  is  sufficiently  balanced  to  remember  the  condi- 
tion of  the  family  and  the  demands  of  all  upon  him,  there  is  no  rule  of 
law  to  prevent  the  persuasion  of  relatives.*  But  in  this  country,  gifts 
by  willi,  as  well  as  other  gifts  to  guardians/  attorneys,^  physicians,^ 


1  Parfitt  V.  Lawless,  ut  supra,  p.  470. 

2  See  Jarman,  by  Randolph  &  Tal- 
cott,  144. 

3  Supra,  §  77.  Illicit  cohabitation  is 
not  enough  of  itself  to  raise  a  pre- 
sumption of  undue  influence.  Rudy  v. 
Ulrich,  69  Penn.  St.  177  ;  Wainwright's 
App.,  89  Penn.  St.  220.  But  it  may  be 
taken  into  consideration  with  other 
circumstances  and  produce  undue  in- 
fluence. Dean  v.  Negley,  41  Penn. 
St.  317  ;  Main  v.  Ryder,  84  Penn.  St. 
217 ;  Kessinger  v.  Kessinger,  37  Ind. 
341. 

^  The  reliance  of  a  mother  upon  a 
daughter  for  the  management  of  her 
pecuniary  and  domestic  affairs  is  no 
ground  for  imputation  of  fraud  by  the 
daughter.  To  imply  fraud  from  filial 
virtue  would  be  monstrous.  Bleecker 
V.  Lynch,  1  Bradf.  458.  But  it  has 
been  held  that  the  relation  of  parent 
and  child  is  proper  to  be  taken  into 
consideration  by  the  jury.  Gaither  v. 
Gaither,  20  Ga.  709.  The  fact  that  the 
children  who  were  present  while  the 
will  was  executed  in  the  absence  of  the 
plaintiff  were  the  principal  benefici- 
aries cannot  be  held  to  raise  a  pre- 
VOL.  I. — 6 


sumption  of  undue  influence.  Bundy 
V.  McKnight,  48  Ind.  502.  See  Tingley 
V.  Cowgill,  48  Mo.  291 ;  Coit  v. 
Patchen,  77  N.  Y.  533. 

5  That  such  gifts  are  void,  see  Breed 
V.  Pratt,  18  Pick.  115  ;  Garvin  v.  Wil- 
liams, 44  Mo.  465  ;  Meek  v.  Perry,  36 
Miss.  190;  but  that  they  only  excite 
suspicion,  Daniel  v.  Hill,  52  Ala.  430. 

6  St.  Leger's  App.,  34  Conn.  450; 
Wilson  V.  Moran,  3  Bradf.  172 ;  Boyd 
V.  Boyd,  66  Penn.  St.  283  ;  Riddell  v. 
.Johnson,  26  Graft.  152.  Sed  contra, 
Griffith  V.  Diffenderffer,  50  Md.  466, 
which  follows  Parfit  v.  Lawless.  There 
is  no  presumption  against  an  agent. 
Lee  V.  Lee,  71  N.  C.  139.  Contra, 
where  the  agent  was  principal  devisee 
and  wrote  the  will  himself,  Harvey  v. 
Sullens,  46  Mo.  147.  See  Wright  v. 
Howe,  7  .Jones  L.  412. 

7  Crispell  v.  Dubois,  4  Barb.  393  ; 
Colhoun  V.  Jones,  2  Redf.  (N.  Y.)  34; 
Cadwallader  v.  West,  48  Mo.  483.  In 
England,  prior  to  Lord  Penzance's 
ruling,  several  cases  disapproved  of 
large  bequests  to  medical  advisors,  and 
held  that  the  burden  of  proof  would 
be   thrown  on    those    to   whom   thev 

81 


§  83.]       MENTAL    UNSOUNDNESS    IN   ITS    LEGAL    RELATIONS. 

and  spiritual  advisers,^  will  be  most  carefully  scrutinized  by  the 
courts,  and  will  raise  an  inference  of  undue  influence  which  it  will 
be  relevant  to  support  by  any  pertinent  corroborative  evidence. 
And  in  general,  when  the  executor  of  the  will,  or  the  party  by 
whom  it  was  written  or  suggested,  is  a  devisee  to  a  large  extent, 
though  not  a  relative,  the  onus  will  lie  heavily  upon  him  to  main- 
tain the  will.^  The  presumption  will,  of  coarse,  depend  upon  the 
amount  of  the  legacy.  The  result,  then,  of  the  cases,  and  the  better 
view  of  the  principles,  may  be  taken  to  be  as  follows  :  No  presump- 
tion of  undue  influence  can  be  justly  formed  from  the  fact,  by  itself, 
that  the  testator  has  disinherited  his  relatives.  But  such  inequality 
of  distribution  is  an  important  factor  in  the  case,  and  when  it  ap- 
pears that  the  party  to  whom  large  benefits  under  the  will  are  to  go 
is  one  who,  though  not  a  relative,  stood  to  the  testator  in  a  rela- 
tion of  trust  and  confidence,  we  are  entitled  to  require  proof  that 
that  confidence  has  not  been  abused.  Stronger  proof  of  fairness 
and  of  intelligent  freedom  on  the  part  of  the  testator  will  be  exacted 
when  the  beneficiary  is  a  stranger  in  blood,  than  when  he  is  a  rela- 
tive.^ And  in  cases  where  the  beneficiary  is  not  a  relative  "  stricter 
proof  will  be  required  of  the  testator's  capacity,  though  not  as  to 
his  knowledge  of  the  contents  of  the  will."* 

§  83.  We  are  therefore  to  conclude  that  the  inference  from  the 
contents  of  a  will,  unless  in  those  extreme  cases  in  which 
from  con-  the  will  itself  is  so  preposterous  as  to  exclude  the  hypothe- 
ccmciusive  ^'^^  ^^  Sanity,  is  not  by  itself  sufiicient  to  determine  the 
issue  of  devisavit  vel  non.  At  the  same  time  a  will  mak- 
ing a  just  distribution  of  an  estate  will  be  held  per  se  strong  evi- 
dence of  disposing  capacity,^  while  one  turning  the  testator's  prop- 
were  given.  1  .Jarm.  Wills,  5th  Am.  house  v.  Godwin,  17  Barb.  236 ;  Lee  v. 
ed.,  by  Bigelow,  *35-36,  and  notes.  Dill,  11  Abb.  Pr.  214;  Cuthbertson's 
See  the  case  of  Audenried's  App.,  89  App.,  Sup.  Ct.  of  Pa.  1881,  Central  Law 
Penn.  St.  114,  reported  33  Am.  Rep.  Journal,  1881,  p.  352;  Duffield  v. 
731.  Robeson,   2   Harr.    (Del.)    384;    Clark 

'  St.  Leger's  App.,  34Conn.  434.    See     v.  Stansbury,  49  Md.   346;  Harvey  v. 
Drake's  App.,  45  Conn.  9,  and  supra,  §     Sullens,  46  Mo.  147. 
77.     For  a  case  where  a  bequest  to  a        *  Supra,  §  79. 

hospital  was  avoided,  see  Muller  w.  *  1  Jarm.  Wills,  5th  Am.  ed.  ;  Bige- 
The  Assoc,  5  Mo.  App.  390.  low,  *35,  Randolph  &  Talcott,  p.  63. 

2  Paske  V.  Ollatt,  2  Phill.  323  :  Dur-         5  Nichols  v.  Binns,  1  Sw.  &  Tr.  239  ; 
ling  V.  Loveland,  2  Curt.  225  ;  New-     Bannatyne  v.  Bannatyne,  2  Rob.  475  ; 

82 


WILLS.  [§  84. 

erty  into  an  unnatural  channel  affords,  though  not  a  direct  presump- 
tion to  the  contrary,  at  least  a  circumstance  of  some  suspicion, 
proper  to  be  put  before  a  jury  in  connection  with  other  facts,  as 
tending  to  determine  the  testator's  capacity.^  This  is  broadly  stated 
by  Sir  John  Nicholl,  in  a  case^  where  he  declares,  that,  where 
a  will  is  traced  into  the  hands  of  a  testator  whose  sanity  is  fairly 
impeached,  but  of  whose  sanity  or  insanity  at  the  time  of  doing  or 
performing  some  act  with  relation  to  the  will  there  is  no  direct  evi- 
dence, the  agent  is  to  be  inferred  rational,  or  the  contrary,  from 
the  character  of  the  act.^ 

§  84.  But,  while  the  apparent  inj[ustice  of  a  testator  to  members 
of  his  family  is  a  circumstance  to  be  taken  into  considera- 
tion in  examining  the  question  of  liis  soundness  of  mind    not  neces- 
at  the  time  of  making  a  disposition  of  his  property  by   yaiilf  ^^ 
will,  it  must  not  be  forgotten  that  a  man  has  a  right  by 
law  to  make  whatever  disposition  of  his  property  he  chooses,  how- 
ever absurd  or  unjust.* 

Thus,  in  a  case  in  1859  in  New  Jersey,  an  issue  was  raised  as  to 
the  sanity  of  a  testator  at  the  time  he  made  his  Avill  under  which 
the  defendants  claimed  title,  and  in  his  opinion  Judge  Whelpley 
said:  "If  he  had  capacity  to  make  a  will,  that  capacity  was  suffi- 
cient to  enable  him  to  make  any  will,  no  matter  how  unjust  or  un- 
reasonable its  provisions  may  seem  to  others.  A  testator  has  a 
right  to  make  an  unreasonable,  unjust,  injudicious  will,  and  his 
neighbors  have  no  right,  sitting  as  a  jury,  to  alter  the  disposition 
of  his  property,  simply  because  they  think  he  did  not  do  justice  to 
his  family  connections.     Unless  the  will  on  its  face  carries  clear 

supra,  §  21  ;  Clarke  v.  Fisher,  1  Paige,  will  in  half  under  circumstances  strong- 

171  ;  Thompson  v.  Kyner,  65  Penn.  St.  ly  indicating  insanity.     The  will  was 

368  ;  Stevens  v.  Vancleve,  4  Wash.  C.  admitted  to  probate. 

C.  R,  262  ;  Harris  v.  Betson,  28  N.  J.  ^  Sf,e  generally  1  Jarman  on  Wills 

Eq.  211  ;  Young  v.  Earner,  27  Gratt.  (5th   Am.    ed.)  chap.    iii.    and   notes, 

96  ;   Means  v.  Means,   5  Strobh.  167  ;  and  supra,  §  61. 

Couch  V.  Couch,  7  Ala.  519  ;  Elliott's  *  Gamble  v.  Gamble,  39  Barb.  273. 

Will,  3  J.  J.  Marsh.  340  ;  Weir's  Will,  See  also  Trumbull  v.  Gibbons,  22  N.  J. 

9  Dana,  434.  L.  117  ;  Gleespin  in  re,  26  N.  J.  Eq.  323  ; 

'  See    supra,   §§    82-83.     Roberts    v.  Wintermute  v.  Wilson,   28  N.  J.    Eq. 

Trawick,  13  Ala.  68.  437  ;    Rutherford    v.    Morris,    77    111. 

2  Scruby   i'.    Fordham,    1   Add.    90.  397  ;  Higgins  v.  Carlton,  28  Md.  115  ; 

This  was  a  case  where  a  party  tore  his  Coleman  v.  Robertson,  17  Ala.  84. 

83 


§  86.]       MENTAL   UNSOUNDNESS    IN   ITS    LEGAL   RELATIONS. 

marks  of  being  the  product  of  a  diseased  mind,  its  injustice,  its 

unreasonableness,  ought  not  to  be  the  foundation  of  a  verdict  against 

ifc."i 

§  85.  Erskine,  J.,  in  the  case  of  Harwood  v.  Baker,^  where  a  will 

^.       .  had  been  executed  in  favor  of  a  second  wife,  to  the  ex- 

Disposing  ^  _  _        _  ' 

mind  free  clusion  of  other  relatives,  the  testator  being  in  a  state  of 
weakened  capacity,  rendering  him  incapable  of  exertion 
unless  roused,  said:  "  Their  lordships  are  of  the  opinion,  that,  in 
order  to  constitute  a  sound  disposing  mind,  a  testator  must  not  only 
be  able  to  understand  that  he  has,  by  his  will,  given  the  whole  of 
his  property  to  one  object  of  his  regard,  but  he  must  also  have  ca- 
pacity to  comprehend  the  extent  of  his  property,  and  the  nature  of 
the  claims  of  others  whom,  by  his  will,  he  is  excluding  from  all 
participation  in  that  property,  and  that  the  protection  of  the  law  is 
in  no  cases  more  needed  than  it  is  in  those  where  the  mind  has  been 
too  much  enfeebled  to  comprehend  more  objects  than  one,  and  more 
especially  when  that  object  may  be  so  forced  upon  the  attention  of 
the  invalid  as  to  shut  out  all  others  that  might  require  considera- 
tion. And  then — for  the  question  which  their  lordships  propose  to 
decide  in  this  case  is,  not  whether  Mr.  Baker  knew  when  he  exe- 
cuted this  will  that  he  was  giving  all  the  property  to  his  wife,  and 
excluding  all  his  other  relations  from  any  share  in  it,  but  whether 
he  was  at  that  time  capable  of  recollecting  who  those  relations  were, 
of  understanding  their  respective  claims  upon  his  regard  and  bounty, 
and  deliberately  forming  an  intelligent  purpose  of  excluding  them 
from  any  share  of  his  property — if  he  had  not  the  capacity  required, 
the  propriety  of  the  disposition  made  by  the  will  is  a  matter  of  no 
importance.  If  he  had  it,  the  injustice  of  the  exclusion  would  not 
affect  the  validity  of  the  disposition,  though  the  justice  or  injustice 
of  the  disposition  might  cast  down  some  light  upon  the  question  as 
to  his  capacity." 

§  86.  Eccentric  and  even  whimsical  clauses  in  a  will  do  not  ope- 
rate, per  se,  to  annul  it,  the  testator's  capacity  being 
clauses  do     Otherwise  indisputed.     Thus,  in  England,  and  by  Sir 
not  mvah-     jjerbcrt  Jenner  Fust,  it  was  held  to  be  not  destructive  of 

date  per  se.  ' 

the  hypothesis  of  sanity,  that  the  testator  should  have 
directed  that  his  executors  should  "cause  some  parts  of  his  bowels 

1  Boylan  i-.  Meeker,  4  Dutclier,  274,         2  3  Moore  P.  C.  282. 
84 


WILLS. 


[§86. 


to  be  converted  into  fiddle-strings — that  others  should  be  sublimed 
into  smelling  salts,  and  that  the  remainder  of.  his  body  should  be 
vitrified  into  lenses  for  optical  purposes."  The  court,  in  admitting 
the  will  to  probate,  -was  governed  by  evidence  that  the  testator  had 
been  marked  by  great  business  shrewdness,  and  that  he  was  regarded 
by  his  associates  as  a  man  of  indisputable  capacity.  His  own  ex- 
planation of  this  extraordinary  provision,  given  in  a  letter  attached 
to  the  will,  was  that  "the  world  may  think  this  to  be  done  in  a 
spirit  of  singularity  or  whim,  but  I  have  a  mortal  aversion  to  funeral 
pomp,  and  I  wish  my  body  to  be  converted  into  purposes  useful  to 
mankind."^ 


'  Morgan  v.  Boys,  Taylor,  Med.  Jur. 
657,  cited  1  Redfield  on  Wills,  chap, 
xiv.  §  11.  Judge  Redfield  thinks  that 
* '  this  must  be  regarded  as  a  most 
charitable  view  of  the  testator's  men- 
tal capacity,  and  which  an  American 
jury  would  not  readily  be  induced  to 
adopt."  See,  also.  Bird  v.  Bird,  2 
Hagg.  142 ;  Kinleside  v.  Harrison,  2 
Phill.  449  ;  Griffiths  v.  Robins,  3  Madd. 
191 ;  Horn  v.  Pullman,  72  N.  Y.  269  ; 
Crolius  V.  Stark,  64  Barb.  112;  Reyn- 
olds V.  Root,  62  Barb.  250 ;  Creely  v. 
Ostrander,  3  Bradf.  107  ;  Browne  v. 
Malliston,  3  Whart.  (Pa.)  129;  An- 
dress  v.  Weller,  3  N.  .J.  Eq.  604 ;  Sloan 
V.  Maxwell,  3  N.  J.  Eq.  563 ;  Higgins 
V.  Carlton,  28  Md.  115  ;  Kirkwood  v. 
Gordon,  7  Rich.  474  ;  Potts  v.  House,  6 
Ga.  324.     And  see  supra,  §  44. 

That  mere  eccentricity  in  a  will  is 
compatible  with  full  testamentary  ca- 
pacity is  illustrated  by  the  fact  that 
eccentric  provisions  are  sometimes 
found  in  the  wills  of  vaew  whose  sanity 
no  one  would  doubt.  Thus  Mr.  Hume, 
the  historian,  left  in  his  will  to  his  old 
friend  Mr.  John  Home,  of  Kilduff  (who 
disliked  port,  and  used  to  contend  that 
"  Home"  was  the  correct  spelling  both 
for  his  name  and  Hume's),  "  ten  dozen 
of  my  old  claret  at  his  choice,  and  one 
single  bottle  of  that  other  liquor  called 
port.     I  also  leave  to  him  six  dozen  of 


port,  provided  that  he  attests  tinder 
his  hand,  signed  John  Hume,  that  he 
has  himself  alone  finished  that  bottle 
at  two  sittings.  By  this  concession  he 
will  at  once  terminate  the  only  two 
difl'erences  that  ever  arose  between  us 
concerning  temporal  affairs." 

Jeremy  Bentham  gave  directions  in 
his  will  that  his  body  should  be  em- 
balmed and  kept  stuffed  in  a  chair  in 
one  of  his  old  apartments. 

The  London  Illustrated  News,  in 
1878,  gave  a  series  of  articles  on  uncon- 
tested eccentric  wills,  among  which 
may  be  noticed  the  following : — 

Mr.  Henry  Budd,  by  his  will,  proved 
in  February,  1862,  declares  "that  in 
case  my  son  Edward  shall  wear  mous- 
taches, then  the  devise  hereinbefore 
contained  in  favor  of  him,  his  ap- 
pointees, heirs,  and  assigns,  of  my  said 
estate  called  Pepperpark,  shall  be  void; 
and  I  devise  the  same  estate  to  my  son 
William,  his  appointees,  heirs,  and 
assigns.  And  in  case  my  said  son  Wil- 
liam shall  wear  moustaches,  then  the 
devise  hereinbefore  contained  in  favor 
of  him,  his  appointees,  heirs,  and  as- 
signs, of  my  estate  called  Twickenham- 
park,  shall  be  void,  and  I  devise  the 
said  estate  to  my  son  Edward,  his  ap- 
pointees, heirs,  and  assigns." 

Mr.  Fleming,  an  aiJi:>raiser  and  up- 
holsterer of  Pimlico,  by  his  will,  proved 

85 


§  87.]        MENTAL    UNSOUXDXESS    IN    ITS    LEGAL    RELATIONS. 


2.  From  old  age. 
§  87.    Testamentary  incapacity  does  not  necessarily  presuppose 
Old  age         the  existence  of  insanity,  in  its  technical  sense.     "Weak- 
does  not        j^ggg  Qf  intellect  from  extreme  old  asie,  whether  arisino; 

per  se  inca-  =    ■  o 

pacitate.        from  great  bodily  infirmity,  or  from  intemperance,  when 


in  April,  1869,  gives  to  the  diflFerent 
men  in  his  employ  lOZ.  each;  "but  to 
those  who  persist  in  wearing  the  mous- 
tache, 51.  only."  Mr.  James  Robbins, 
whose  will  was  proved  in  October, 
1864,  declared  "  that,  in  the  event  of 
my  dear  wife  not  complying  with  my 
request  to  wear  a  widow's  cap  after  my 
decease,  and  in  the  event  of  her  mar- 
rying again,  that  then  and  in  both 
cases  the  annuity  which  shall  he  pay- 
able to  her  out  of  my  estate  shall  be 
201.  per  annum,  and  not  30Z."  Mr. 
Edward  Concaueu.  in  a  will  proved  in 
May,  1868,  says:  "And  I  hereby  bind 
my  said  wife  that  she  do  not  after  my 
decease  offend  artistic  taste,  or  blazon 
the  sacred  feelings  of  her  sweet  and 
gentle  nature,  by  the  exhibition  of  a 
widow's  cap."  A  very  peculiar  obli- 
gation was  imposed  on  two  of  his  lega- 
tees by  Sir  James  South,  the  astrono- 
mer, whose  will,  with  several  codicils, 
was  proved  in  1868.  By  his  will  he 
gave  a  pocket  chronometer  each  to  the 
Earl  of  Shaftesbury,  the  Earl  of  Rosse, 
and  Mr.  Archibald  John  Stevens  ;  and 
in  one  of  his  codicils  he  states  they 
were  so  given  to  theia  in  the  fullest 
confidence  that  they  would  respectively 
use  and  wear  them  in  the  same  man- 
ner as  "  I  am  in  the  habit  of  wearing 
my  chronometer,  namely,  in  my  pan- 
taloon pocket,  properly  so  called' ' — a 
sort  of  premium  to  try  and  perpetuate 
the  old  fashion  of  carrying  a  watch  in 
the  fob  pocket,  in  vogue  when  Sir  James 
South  was  a  young  man. 

The  Countess  Dowager  of  Sandwich, 
in  her  will,  written  by  herself  at  the 
age   of  eighty,    proved   in    November, 

86 


1862,  expresses  her  "wish  to  be  buried 
decently  and  quietly — ^no  undertaker's 
frauds  or  cheating,  no  scarfs,  hatbands, 
or  nonsense. "  Mrs.  Kitty  Jenkyn  Packe 
Reading,  although  evidently  possessed 
of  sufficient  means,  appears  by  her  will, 
proved  in  April,  1870,  to  have  been  very 
anxious  that  one  part  at  least  of  the  ex- 
penses attending  her  funeral  should  be 
kept  as  low  as  possible.  After  saying 
she  is  to  be  placed  first  in  a  leaden  and 
then  in  a  wooden  coffin,  she  provides 
that  "  if  I  die  away  from  Branksome, 
I  wish  my  remams,  after  being  duly 
placed  in  the  proper  coffins,  to  be  in- 
closed in  a  plain  deal  box  so  that  no 
one  may  know  the  contents,  and  con- 
veyed by  a  goods  train  to  Poole,  which 
will  cost  no  more  than  any  other  pack- 
age of  the  same  weight ;  from  Poole 
station  said  box  to  be  conveyed  in  a 
cart  to  Branksome  Tower."  Mr.  Wil- 
liam Kensett,  by  his  will,  proved  in 
October,  1855,  recites  that,  "believing 
in  the  impolicy  of  interring  the  dead 
amid  the  living,  and  as  an  example  to 
others,  I  give  my  body,  four  days  after 
death,  to  the  directors  of  the  Imperial 
Gas  Company,  London,  to  be  placed  in 
one  of  their  retorts  and  consumed  to 
ashes,  and  that  they  will  be  paid  £10 
by  my  executors  for  the  trouble  this 
act  will  impose  on  them  in  so  doing. 
Should  a  defence  of  fanaticism  and  su- 
perstition prevent  their  granting  this, 
my  request,  then  my  executors  must 
submit  to  have  my  remains  buried,  in 
the  plainest  manner  possible,  in  my 
family  grave  at  St.  John's-wood  Ceme- 
tery, to  assist  in  poisoning  the  living 
in  that  neighborhood." 


WILLS.  [§88. 

it  disqualifies  the  testator  from  knowing  or  appreciating  the  na- 
ture, effect,  or  consequences  of  the  act  he  is  engaged  in,  works 
a  similar  disability.^  Great  caution,  indeed,  should  be  used,  lest 
the  existence  of  extreme  old  age  should  lead  the  medical  witness  to 
presume  consequent  imbecility.  Against  such  a  sequence  the  policy 
of  the  law  and  the  interests  of  humanity  unite  in  protesting.  "  It 
is  one  of  the  painful  consequences  of  extreme  old  age,"  beauti- 
fully said  Chancellor  Kent,  in  one  of  his  earlier  judgments,  "that 
it  ceases  to  excite  interest,  and  is  apt  to  be  left  solitary  and  neg- 
lected. The  control  which  the  law  still  gives  to  a  man  over  the 
disposal  of  his  property,  is  one  of  the  most  efficient  means  which  he 
has  in  protracted  life  to  command  the  attention  due  his  infirmities. 
The  will  of  such  an  aged  man  ought  to  be  regarded  with  great  ten- 
derness, when  it  appears  not  to  have  been  procured  by  fraudulent 
acts,  but  contains  those  very  dispositions  which  the  circumstances 
of  his  situation  and  the  course  of  the  natural  affections  dictated."^ 

§  88.  "Grreat  age,  alone,"  adds  a  very  enlightened  and  liumane 
jurist,  Judge  Bradford,  "  does  not  constitute  testamentary    g^^^^i^ 
disqualification  ;  but,  on  the  contrary,  it  calls  for  protec-   rather  be 
tion  and  aid  to  further  its  wishes,  when  a  mind  capable 
of  acting  rationally,  and  a  memory  sufficient  in  essentials,  are  shown 
to  have  existed,  and  the  last  will  is  in  consonance  with  definite  and 
long-settled  intentions,  is  not  unreasonable  in  its  provisions,  and  has 
been  executed  with  fairness. "^     Nor,  was  it  ruled  by  the  same 
learned  judge,  does  loss  of  memory  incapacitate,  unless  it  be  total, 
or  appertains  to  things  essential.* 

In  connection  with  these  passages,  the  remarks  of  Lord  Cockburn, 
C.  J.,  in  the  case  of  Banks  v.  Goodfellow,^  are  worthy  of  attention. 
"  In  these  cases,"  he  says,  "  it  is  admitted  on  all  hands  that  though 
mental  power  may  be  reduced  below  the  ordinary  standard,  yet,  if 
there  be  sufficient  intelligence  to  understand  and  appreciate  the  tes- 
tamentary act  in  its  different  bearings,  the  power  to  make  a  will 
remains.     It  is  enough  if ,  to  use  the  words  of  Sir  Edward  Williams, 

I  Leech  v.  Leech,  21  Penn.   St.   67.         *  Van  Alst  v.  Hunter,  5  Johns.  Ch. 

Seein  this  connection  Dr.  Day's  "  Prac-  148.     See  pos<,  §  104. 

tical  Treatise  on  the  Domestic  Manage-  *  Maverick  v.  Reynokls,  2  Bradf.  360. 
mentof  the  Most  Important  Diseases  of        *  Bleecker  v.  Lynch,  1  Bradf.  360. 
Advanced   Life."      T.   &   W.    Boome,         5  l.  R.  5  Q.  B.  549. 
London,  1849. 

87 


§  90.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 


in  his  work  on  '  Executors,'  '  the  mental  faculties  retain  sufficient 
strength  fully  to  comprehend  the  testamentary  act  about  to  be  done.' 
'  Non  sani  tantum,'  says  Voet,  in  his  '  Commentary  on  the  Pandects,' 
founding  himself  on  the  language  of  the  code,  '  sed  et  in  agone  mor- 
tis positi,  seminece  ac  balbutiente  lingu^  voluntatem  promentes, 
recte  testamentas  condunt,  si  modo  mente  adhuc  valeant.'  " 

§  89.   In  harmony  with  these  views,  wills   have  been  sustained 
when  the  testator  was  eisrhty  years  of  a^e,  very  deaf. 

So  of  par-  ,  .    11      T  ,•■,,,  /  ^    ,  I 

tiaiiossof  and  partially  bund  ;*  where  he  was  of  the  same  age,  and 
■^yag  afflicted  with  a  palsy,  so  that  be  could  neither  write 
nor  feed  himself;^  and  when  he  was  between  ninety  and  a  hundred^ 
and  greatly  debilitated.^  It  is  true  that  when  in  old  age  the  tes- 
tator is  shown  to  have  been  imposed  vipon  or  coerced,  the  will  will 
be  set  aside ;  but  this  rather  tends  to  strengthen  than  invade  the 
sanctity  of  the  testamentary  privilege.^ 

§  90.  The  same  view  is  to  be  taken  of  the  bodily  infirmities  pecu- 
liar to  old  age.     If  they  produce  mental  impotence,  of 

And  bodily  ,,  °     ,    .  ■       ^      -n.         ,     • 

infirmities,     course  they  work  incapacity.^     But  their  mere  existence 

will  not  be  sufficient  to  produce  this  result.^     As  long  as 


»  Lowe  V.  Williamson,  2  N.  J.  Eq.  82. 
2  Reed's  Will,  2  B.  Mon.  79. 

*  Van  Alst  i\  Hunter,  5  Johns.  Ch. 
148.  See  Collins  v.  Townley,  21  N.  J. 
Eq.  353. 

*  1  Jarm.  on  Wills  (5th.  Am.  ed.), 
chap.  iii. 

5  Harvey  v.  Sullens,  46  Mo.  147. 

6  Vanauken  ex  parte,  10  N.  J.  Eq. 
186.  Thus,  mere  impairment  of  intel- 
lect is  not  unsoundness  of  mind.  Den 
V.  Johnson,  4  N.  J.  L.  454  ;  Collins  v. 
Townley,  21  N.  J.  Eq.  353;  Winter- 
mute  V.  Wilson,  28  N.  J.  Eq.  437 ; 
Jamison  v.  Jamison,  3  Houst.  (Del.) 
108  ;  Watson  v.  Watson,  2  B.  Mon.  74  ; 
Reed's  Will,  2  B.  Mon.  79  ;  Rutherford 
V.  Morris,  77  111.  397.  Nor  is  failure  of 
memory,  Reynolds  v.  Root,  62  Barb. 
250  ;  Eddy's  case,  32  N.  J.  Eq.  701  ; 
Lowder  v.  Lowder,  58  Ind.  538  ;  though 
attended  by  slight  delusions.  Children's 
Aid.  Soc.  V.  Loveridge,  70  N.  Y.  387. 
But  old  age  and  sickness   are   proper 

88 


circumstances  to  be  considered  in  de- 
termining capacity,  Willemin  v.  Dunn, 
93  111.  511  ;  and  when  a  grantor  is  in 
such  a  condition,  and  is  ignorant,  it  is. 
the  duty  of  the  officer  authenticating 
the  execution  of  his  deed  to  explain  its 
contents  to  him,  Lyons  v.  Van  Riper,  28 
N.  J.  Eq.  437.  Where  such  was  the 
condition  of  a  testator,  it  has  been  held 
that  it  must  be  affirmatively  shown 
that  he  knew  the  contents  of  the  will, 
Wisener  v.  Maupin,  58  Tenn.  342  ;  and 
it  has  been  held  that  the  burden  is  on 
those  propounding  the  will  of  an  aged 
person  who  is  of  impaired  mind  and 
body.  Pliipps  v.  Van  Kleeck,  22  Hun, 
541  ;  Ames'  Will,  51  Iowa,  596.  See 
Shakespeare  v.  Markham,72  N.  Y.  400. 
No  person  ought  to  subscribe  as  witness 
to  a  will  unless  he  knows  from  the  tes- 
tator himself  that  he  undei'stands  what 
he  is  doing.  Scribner  v.  Crane,  2  Paige, 
147,  Walworth,  C.  A  will  has  been  set 
aside  in  submission  to  the  opinions  of 


WILLS.  [§  92. 

it  can  be  done  consistently  with  public  justice,  the  policy  of  the  law 
requires  that  the  protection  to  old  age,  afforded  by  the  right  of  tes- 
tamentary disposal,  should  continue  unimpaired  ;  and  it  is  permitted 
to  cease  only  when  actual  wrong  would  be  done  to  third  parties  by 
its  continuance,  or  where  by  exposing  the  possessor  to  undue  so- 
licitation or  to  imposition,  it  proves  an  annoyance  rather  than  an 
advantage.  Nor  is  this  rule  without  its  foundation  in  the  results  of 
observation.  The  truth  that  the  mind  is  not  necessarily  affected  by 
bodily  infirmity,  is  illustrated  by  numerous  cases,  one  of  the  most 
striking  of  which  is  that  of  Dugald  Stewart,  who,  when  unable  from 
disease  to  take  general  exercise,  to  use  his  right  hand,  or  to  articu- 
late distinctly,  composed  the  third  and  fourth  volumes  of  his  Phi- 
losophy of  the  Human  Mind. 

§  91.  In  a  case  in  1869  in  Illinois,  where  a  bill  was  filed  to  set 
aside  a  deed  made  by  a  man  eighty-seven  years  old  to  his 
son,  on  the  ground  of  mental  imbecility,  the  court  held    weakness 
that  in  order  to  entitle  the  plaintiffs  to  the  relief  sought,    Xown  to 
thev  must  show  such  a  degree  of  mental  weakness  as  to    incapaci- 

•^  ^  .  tate. 

render  the  party  incapable  of  understanding  and  protect- 
ing his  own  interests.     The  circumstance  that  the  mental  powers 
have  been  somewhat  impaired  by  age  is  not  sufficient,  if  the  con- 
tracting party  still  retains  a  full   comprehension  of  the  meaning, 
design,  and  effect  of  his  acts.^ 

§  92.  In  an  English  case  reported  by  Mr.  Browne,^  the  evidence 
was  that  Andrew  Harrison  made  a  will  and  several  codi- 
cils ;  the  will  and  the  first  four  codicils  were  not  opposed,    ^^^^^    °^' 
the  other  codicils  were  contested.     The  contested  codicils 
were  set  up  by  Mr.  Kinleside,  who  was  one  of  the  executors  and 
the  residuary  legatee  named  in  the  will,  and  they  were  opposed  by 
Mr.  Benjamin  Harrison,  whose  appointment  as  an  executor  and  the 
benefits  he  derived  under  the  will  were  revoked  by  these  codicils. 
All  these  instruments  were  regularly  executed,  and  the  grounds  of 
opposition  were,  that  the  deceased  labored  under  dementia  (mental 

the  subscribing  witnesses  and  the  fact         '  Lindsey  v.  Lindsey,  50  111.  79. 
that  some  time  after  the  testator  forgot         *  Kinleside  v.  Harrison,  2  Phill.  449. 

his  children.     Dumond  v.  Kiff,  7  Lans.  See  Browne's  Med.  Jur.,  London,  1871, 

(N.  Y.)  465.    See,  generally,  1  Jarm.  p.  212. 
on  Wills,  5th  Am.  ed.,  chap.  iii.  ;    1 
Redf.  Wills,  chap.  iii.  section  xii. 

89 


§  92.]       MENTAL    UNSOUNDNESS    IN   ITS   LEQAL    RELATIONS. 

imbecility),  so  as  to  be  incapable  of  any  testamentary  act  whatever; 
and  with  regard  to  two  of  the  codicils,  it  was  asserted  that  they 
were  obtained  from  the  deceased  by  fraud,  circumvention,  and  im- 
portunity. 

It  was  proved  that  the  testator  was  eighty-six  or  eighty-eight 
when  the  contested  codicils  were  made.  It  was  also  proved  that  the 
deceased  was  liable  to  certain  nervous  attacks,  and  it  was  admitted 
that  during  these  attacks  he  was  incapable  of  any  rational  act.  The 
deceased  was  admitted  to  be  deaf,  to  be  nervous  and  low-spirited 
when  anything  affected  him.  His  eyesight  was  perfect,  his  bodily 
powers  were  not  much  impaired.  It  was  proved  that  he  could  run 
up  stairs.     These  points  were  not  controverted. 

Thirteen  witnesses  were  examined  to  prove  the  incapacity  of  the 
testator.  Most  of  them  spoke  of  a  failure  of  memory,  of  a  defective 
power  of  recognizing  people,  of  his  being  regarded  by  those  about 
him  as  a  person  of  weak  mind,  and  of  his  appearing  to  be  "  lost." 
But  their  evidence  brought  out  the  fact  that  he  was  in  many  ways 
vigorous  in  mind  and  body,  and  that  he  was  able  to  transact  business 
without  assistance.  They  were  strongly  of  opinion  that  the  testator 
was  of  unsound  mind,  and  incapable  at  the  time  the  contested  codi- 
cils were  made  of  making  a  valid  testamentary  instrument. 

The  evidence  of  Mr.  Boodle,  the  solicitor,  who  was  concerned  in 
the  execution  of  the  codicils,  was  that  at  the  time  of  their  execution 
Mr.  Boodle,  although  he  thought  the  deceased's  memory  defective, 
did  not  regard  him  as  permanently  incapable  ;  and,  when  taken  in 
connection  with  the  evidence  of  other  witnesses,  led  to  the  conclu- 
sion that  the  testator  did  not  labor  under  such  mental  defect  as  to 
render  him  incapable  of  a  valid  testamentary  act.  It  was  satisfac. 
torily  proved  that  he  was  able  to  settle  bills,  to  draw  his  own  drafts, 
to  write, letters,  to  play  cards,  to  go  about  by  himself,  and  that  he 
comprehended  the  state  of  his  affairs ;  and  many  of  the  witnesses 
summoned  in  support  of  the  codicils  asserted  that  they  regarded  him 
as  a  person  of  sound  mind,  whose  memory  and  understanding  were 
unimpaired. 

With  regard  to  this  part  of  the  case  the  learned  judge  says: 
"  Now,  these  accounts,  with  the  bills  regularly  paid  and  indorsed, 
these  drafts  drawn,  these  counterchecks  registered  and  marked  with 
the  date  and  sum  for  which  they  were  drawn,  the  corresponding  en- 
tries in  the  book  of  expenditure,  prove  mind  and  understanding,  and 
90 


WILLS.  [§  95. 

thought,  judgment,  and  reflection  very  strongly,  and,  in  a  person  of 

his  great  age,  of  a  most  extraordinary  and  unusual  degree 

It  is  proved  to  ray  satisfaction  that  he  possessed  his  mental  faculties 
in  an  extraordinary  degree,  considering  his  great  age,  and  that  he 
had  a  testamentary  capacity  quite  equal  to  £i>  testamentary  act  of  no 
very  complicated  nature." 

§  98,  Sir  J.  Wilde  (now  Lord  Penzance),  in  pronouncing  judg- 
ment in  the  case  of  West  v.  Sylvester,  against  a  will  pro- 
pounded as  that  of  an  aged  lady,  said,  "  At  the  time  she    l^^fufg^of 
executed  the  will  of  October,  1863,  although  for  many    memory 

'         .  .     °  ''     invalidates. 

purposes  she  might  be  said  to  be  m  her  right  senses,  she 

was,  nevertheless,  suffering  from  that  failure  and  decrepitude  of 

memory  which  prevented  her  having  present  to  her  mind  the  proper 

objects  of  her  bounty,  and  selecting  those  she  wished  to  partake 

of  it."     On  this  ground  the  will  was  set  aside. 

§  94.  It  is  also  to  be  observed  that  a  party  in  extreme  old  age 

may  fall  under  the  subjection  of  relatives  or  attendants 

,.,.„„,  c      ^^      -^Qcl  senile 

to  such  an  extent  as   to  deprive  him  ot  ireedom  ot  voli-    dread  of 

tion.  His  mind  "  may  be  quite  intelligent,  his  under- 
standing of  business  clear,  his  competency  to  converse  upon  and 
transact  business  undoubted,  and  his  bodily  strength  good ;  but 
there  may  grow  upon  him  a  fear  and  dread  of  relatives  or  servants 
who  may  have  surrounded  him,  and  on  whom  he  may  have  become 
so  perfectly  dependent  that  his  nervous  system  is  wholly  overcome, 
so  that  he  has  no  power  to  exert  his  mind  in  opposition  to  their 
wishes,  or  to  resist  their  importunities.  His  mind  is  enslaved  by 
his  fear  and  a  feeling  of  helplessness,  so  that,  to  that  extent,  and 
in  matters  in  which  he  may  be  moved  by  them,  he  really  is  facile 
and  imbicile.  This  state  of  things  seems  to  be  easily  brought  on 
in  old  age,  when  the  faculties  are  otherwise  entire,  and  the  bodily 
strength  considerable."^ 

3.  From  physical  causes. 

\^See  this  question  viewed  psychologically,  infra,  §§  461-469.] 

§  95.  In  cases  of  blindness,  or  of  deaf-and-dumbness,  the  party 
oflfering  a  will  has  the  burden  of  proving  that  the  testator  knew  the 

>  See  Taylor's  Med.  Jur.  2d  ed.  (1873),  ii.  558. 

91 


§  96.]       MEXTAL    UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

Corape-  contents  of  the  will,  and  was  not  imposed  upon.^     It  has 

in"cifses  o/  ^®®^  questioned  whether  a  person  who  was  both  blind  and 

deaf-mutes,  (Jeaf  and  dumb,  is  competent  to  execute  any  instrument 

ledge  of  in-  requiring  consideration,^  though,  as  will  be  seen,^  this 

strument  ,  •  i         i         i        i       i 

must  be        cannot  now  be  considered  to  be  the  law,  when  to  that  un- 
o^vn.  fortunate  class   methods  of  communication   have  been 

opened  which  may  fit  them  to  sustain  and  appreciate  the  relations 
of  society. 

§  96.  "  AYe  regard  this  class  of  persons,"  says  Judge  Redfield, 
Question  ^^^  ^^®  excellent  treatise  on  wills/  "  as  standing  precisely 
depends  on   like  all  others  in  that  respect  (testamentai'y  capacity"), 

education.  .,,..  j        sr         j  y 

wrth  this  difference,  perhaps,  that,  where  it  appears  that 
the  testator  was  a  deaf-mute,  it  will  impose  upon  those  who  claim 
to  establish  the  will  the  burden  of  showing,  in  the  first  instance, 
that  the  testator  made  the  instrument  understandingly."  But  even 
this  qualification,  the  same  learned  author  seems  to  think,  vanishes, 
"  in  the  case  of  educated  mutes,  who  are  capable  of  communicating 
by  writing."  "  The  fact  that  the  testator  wrote  the  will  might 
fairly  be  regarded  as  sufficient  evidence,  prima  facie  at  least,  that 
he  made  it  understandingly."  And  the  deaf  and  dumb  testator 
may  communicate  his  intention  to  execute  by  signs,^  or  by  writing.^ 
Whatever  may  once  have  been  thought,  it  is  now  clear  that  even  a 
concurrence  of  blindness  with  deafness  and  dumbness,  necessarily 
works  no  incapacity.'^ 

The  question  depends  upon  the  education  of  the  party  afilicted 
with   this   calamity.     Under   recent   improved  culture  deaf-mutes 

'  1  Jarm.  Wills,  5tlx  Am.  ed.  cli.  iii.  deaf,     and    dumb.       See    Harrison   v. 

2  Ibid.  Rowan,  3  Wash.  C.'  C.  R.  580  ;  Lewis 

3  Infra,  §  96.  v.  Lewis,  6  S.  &  R.  (Pa.)  489  ;  Day  c. 
*  I.  ch.  iii.  §  5.  Day,  3  N.  J.  Eq.  444 ;  Davis  v.  Rogers, 

5  Owston  in  re,  2  Sw.  &  Tr.  461;  1  Houst.  (Del.)  44;  Wampler  v. 
Geale  in  re,  3  Sw.  &  Tr.  431.  Wampler,  9  Md.  540 ;  Clifton  v.  Mur- 

6  Moore  u.  Moore,  2  Bradf.  265.  See  ray,  7  Ga.  564;  Martin  v.  Mitchell, 
Christmas  v.  Mitchell,  3  Ired.  Ch.  535.  28  Ga.  382  ;  Ray  v.  Hill,  3  Strobh.  297  ; 

-  Weir  V.  Fitzgerald,  2  Bradf.  42.  See  Guthrie  v.  Price,  23  Ark.  396  ;  Bar- 
Oliver  V.  Berry,  53  Me.  206  ;  Reynolds  ton  v.  Robins,  3  Phill.  455  ;  Long- 
i>.  Reynolds,  1  Spear,  253.  But,  as  with  champ  v.  Fish,  2  Bos.  &  Pul.  N.  R. 
deaf-mutes,  it  must  be  shown  that  415  ;  EdAvards  v.  Fincham,  3  Curt.  63  ; 
the  testator  understood  the  contents  of  Mitchell  v.  Thomas,  6  Moore  P.  C.  C. 
the  will ;  a  fortiori,  when  he  is  blind,  137. 

92 


WILLS.  [§  98. 

are  enabled  to  receive  instruction  freely,  and  freely  to  commu- 
nicate their  views ;  and,  when  this  is  the  case,  their  testamentary 
capacity  cannot  be  questioned  on  the  ground  that  they  are  deaf- 

^^^^^'  ^  Deaf-mutes 

&  97.  If  compos  mentis,  deaf  and  dumb  persons  can    ™ay  marry 

•'  .    -^  '■  when  corn- 

contract  matrimony.^  pos  mentis. 

§  98.  Whether  a  deaf-and-dumb  person  is  cajjax  negotii   Question  is 

is,  under  the  instruction  of  the  court,  a  question  to  be    ?^].V°'' 

determined  by  the  conditions  of  the  concrete  case.^ 

'  The  earlier  cases  will  be  found  in         ^  ^g  to  pleading,  see  R.  v.  Pritchard, 

a  learned  essay  by  Dr.  H.  P.  Peet,  in  7  C.  &  P.  303  ;  R.  v.  Whitfield,  3  C.  & 

the  13tli  vol.  of  the  Am.  Journ.  of  In-  K.  121  ;  Wh   Cr.  PI.  &  Pr.  §  417  ;  and 

sanity.     See   Oliver  v.  Berry,  53  Me.  see  Ordronaux  Jud.  Aspects  of  Insan. 

206.  225.     For  other  points  in  this  connec- 

2  Swinburne  on    Spousals,  cited  13  tion  see  supra,  §  461. 
Am.  Journ.  Insan.  127. 

93 


§  100.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 


CHAPTER  III. 


COMMISSIONS  OF  LUNACY. 


Process  to  determine  lunacy  by  a  com- 
mission, §  99. 

General  manner  of  issuing,  §  100. 

Issue  before  a  commission  is  general 
incompetency,  §  101. 

Opinions  of  witnesses  admissible,  §  102. 

Ability  to  manage  business  the  test  of 
competency,  §  103. 

But  mere  old  age  does  not  incapacitate, 
§  104. 


Harmless  lunatic  confined  when  neces- 
sary, §  104  a. 

What  constitutes  habitual  drunkard, 
§105. 

Extravagance  and  profligacy  need  not 
constitute  incompetency,  §  106. 

Proceedings  may  be  set  aside  if  irreg- 
ular or  inequitable,  §  107. 


§  99.  In  most  of  the  United  States,  as  in  England,  process  exists 
p  ocess  to     ^y  which,  when  a  party  is  incapable  of  the  management 

determine  of  his  ostatc,  whether  from  mental  unsoundness  or  from 
lunacy  by  a  .  . 

commis-  habitual  drunkenness,  a  committee  may  be  appointed  to 
^^°^'  whom  the  custody  of  his  property  is  committed.    It  would 

be  out  of  place  to  set  forth  here  the  statutes  by  which  this  process 
is  defined  and  settled ;  it  is  enough  now  to  notice  the  general 
scheme  of  practice  which  exists  in  England,  and  which  has  been, 
with  the  exceptions  of  only  slight  alterations  of  detail,  adopted  in 
this  country.^ 

§  100.  AVhen  there  is  reason  to  believe  that  a  party,  from  un- 
soundness of  mind  or  habitual  drunkenness,  is  incapable 
manner  of     of  managing  his  aifairs,  a  petition  lies,  generally  from 
issumg.         g^^y  pgj.sQj^   interested  in  his  person  or  estate,  for  the 
issuing  of  a  commission.^     Upon  the  reception  of  the 


'  See  Ordronaux's  .Tudic.  Aspects  of 
lusan.  (1877)  2  et  seq. 

2  The  petition  must  be  sustained 
by  affidavits.  Persse  ex  parte,  1  Moll. 
219  ;  Lincoln  ex  parte,  1  Brewst.  392. 
For  an  interesting  case  where  an  East 
Indian,    temporarily    insane    in    New 

94 


York,  was  sent  home  to  his  family 
under  the  charge  of  a  committee,  the 
court  having  refused  to  entrust  him  to 
the  care  of  his  father-in-law,  who  came 
from  India  to  seek  him,  see  Colah  in 
re,  3  Daly,  529  ;  S.  C,  11  Abb.  Pr.  N. 
S.  209.     The  court  rested  the  inherent 


COMMISSIONS   OF   LUNACY. 


[§  101. 


petition,  the  court  directs  a  commission  to  issue  to  one  or  more 
persons — generally  required  to  be  learned  in  the  law — directing  the 
inquiry  by  commissioner  and  jury,  as  to  the  facts  of  the  petition. 
The  commissioner,  being  thus  authorized,  directs  a  precept  to  the 
sheriff,  commanding  him  to  summon  a  jury,  who,  when  they  meet, 
hear  testimony — on  both  sides  if  desired — on  the  matter  submitted 
to  them,  and,  after  being  charged  by  the  commissioner  as  to  the 
law  of  the  case,  return  a  finding  as  to  whether,  from  the  lunacy  or 
habitual  drunkenness  complained  of,  the  respondent  is  incapable  of 
managing  his  estate.^  Should  the  finding  be  in  the  afiirmative,  the 
court  will  appoint  a  committee,  who  will  take  charge  of  the  respond- 
ent's estate,^  subject,  however,  to  the  absolute  right^  of  the 
respondent  to  traverse  the  finding,  i.  e  ,  to  put  in  a  formal  denial  of 
it,  in  which  case  the  question  is  determined  before  a  court  and  jury, 
in  the  same  way  as  any  other  contested  fact.  Whether  the  alleged 
lunatic  really  is  capable  of  volition  as  to  a  traverse,  and  desires 
that  a  traverse  should  be  entered,  will  be  determined,  it  seems,  by 
the  chancellor  himself,  by  personal  examination  or  otherwise.* 

§  101.  It  will  be  seen  that  the  point  at  issue  under  a  commission 
of  lunacy  or  habitual  drunkenness,  is  the  general^  and    issue  before 
not  the  partial  or  pai-ticular ^  incompetency  of  the  party,    siou"i™'' 
who  is  the  subject  of  the  inquiry.^     It  is  a  matter  of   general  in- 

•^  1       ./  ^  compe- 

some  moment,  also,  that  the  fullest  opportunity  of  exami-    tency. 


jurisdiction  of  the  state  over  lunatics 
and  persons  of  unsound  mind  within 
its  limits,  whether  citizens  or  aliens, 
on  two  grounds  :  First,  the  duty  to  pro- 
tect the  community  from  the  acts  of 
those  who  are  not  under  the  guidance 
of  reason  ;  and,  secondly,  its  duty  to 
protect  them  as  a  class  incapable  of  pro- 
tecting themselves,  which  duty  has  its 
foundation  in  the  reciprocal  obligation 
of  allegiance  and  protection,  and  which 
extends  to  aliens  and  strangers  who 
owe  a  temporary  and  local  allegiance. 
That  the  petition  is  necessary  to  juris- 
diction, see  Payn  in  re,  8  How.  Pr. 
220  ;  Mason  in  re,  1  Barb.  436. 

'  Personal   service    on    the    alleged 
lunatic  is   always  necessary.     Dozier, 


in  re,  4  Baxt.  (Tenn.)  81.  Subsequent 
proceedings,  in  the  absence  of  this, 
would  be  void.  Moody  v.  Bibb,  50 
Ala.  245  ;  Molton  v.  Henderson,  62  Ala. 
426. 

2  The  New  York  practice  is  given  in 
Ordronaux's  Judic.  Aspects  of  Insan. 
(1877)  14.  See,  as  to  the  practice  in  re- 
gard to  the  appointment  and  removal  of 
committees.  Black's  Est.,  18  Penn.  St. 
434;  Hulings  v.  Laird,  21  Penn.  St. 
265. 

'  Gumming  in  re,  11  Eng.  L.  &  Eq. 
202 ;  1  De  G.  M.  &  G.  537. 

■»  Ibid. 

^  Watson's  Interdiction,  31  La.  Ann. 
757. 

95 


§  101.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

nation  be  given.  When  a  particular  instrument  is  sought  to  be 
vacated,  or  a  particular  crime  to  be  excused,  the  testimony  of  the 
medical  witness  is  necessarily  drawn  from  but  casual  observation, 
made  in  some  cases  at  a  time  when  he  had  no  reason  to  suspect  the 
existence  of  the  disease.  In  such  cases,  also,  great  incentives  to 
fraud  exist  ;^  and  it  is  well  known  how  acute  must  be  the  penetra- 
tion, and  hoAv  sharp  the  tests  which  are  not  sometimes  baffled  by  the 
simulation  of  mental  unsoundness.  On  the  other  hand,  a  commis- 
sion of  lunacy  is  executed  with  deliberation,  after  a  calm  and  full 
review  of  the  previous  life  of  the  party  under  consideration.  Nor 
is  he  likely,  as  in  criminal  defences,  to  obtain  a  verdict  of  insanity 
through  undue  sympathy,  for  his  interests  and  his  pride  are  both 
enlisted  in  resisting  his  moral  and  intellectual  disfranchisement.  It 
becomes,  therefore,  a  simple  test.  Is  the  respondent  prevented  by 
mental  unsoundness  or  habitual  drunkenness  from  managing  his 
own  estate  ?^  If  he  is,  no  matter  how  responsible  he  may  be  for 
crime,  or  capable  at  particular  times  of  making  a  bargain,  the  find- 
ing must  be  against  him. 

Upon  a  recovery  of  competency,  the  commission,  on  due  cause 
shown,  will  be  superseded.^ 


•  In  actions  for  the  interdiction  of  a 
party  for  insanity,  investigation  of  the 
motives  of  those  who  are  provoking  the 
interdiction  is  of  the  utmost  conse- 
quence. Francke  v.  His  Wife,  29  La. 
Ann.  302. 

2  Titcomb  v.  Vantyle,  84  IlL  371 ; 
Jacox  V.  Jacox,  40  Mich.  473;  Fen- 
tress V.  Fentress,  7  Heisk.  (Tenn.) 
428  ;  Gray  v.  Obear,  59  Ga.  675. 

3  See  Lackey  v.  Lackey,  8  B.  Hon. 
107;  Russel  in  re,  1  Barb.  Ch.  38; 
Lasher  in  re,  2  Barb.  Ch.  97  ;  Mason 
in  re,  1  Barb.  436  ;  Beaumont's  case,  1 
Whart.  52. 

Prof.  Ordronaux,  in  his  treatise  on 
the  Judicial  Aspects  of  Insanity  (N.  Y., 
1877),  229,  shows  satisfactorily  the  pro- 
cesses by  which  English  chancellors 
gradually  reached  the  conclusion  that 
the  test  is  business  capacity.  "Thus 
in  Gibson  v.  Jeyes,  6  Ves.  Jr.  266  a,  at 

96 


p.  272,  which  was  a  case  of  imbecility, 
Lord  Eldon  observed  that  it  was  a  ques- 
tion '  whether  this  case  might  not  sup- 
port a  commission,  not  of  lunacy,  but 
in  the  nature  of  a  writ  de  lunatico,  in 
which,  it  must  be  remembered,  it  is 
not  necessary  to  establish  lunacy,  but 
it  is  sufacient  that  the  party  is  incapa- 
ble of  managing  his  own  aifairs.'  And 
in  another  similar  case  this  same  high 
authority  said  that  'a  commission  of 
lunacy'  is  not  confined  to  strict  insanity, 
but  is  applied  to  cases  of  imbecility  of  ■ 
mind,  to  the  extent  of  incapacity  from 
any  cause,  as  disease,  age,  or  habitual 
intoxication.  Ridgeway  v.  Darwin,  8 
Ves.  Jr.  65. 

"  Lord  Erskine  in  ex  parte  Cranmer, 
12  Ves.  Jr.  445,  reiterated  the  views  ex- 
pressed by  Lord  Eldon,  and  held  that  a 
commission  of  lunacy  was  applicable  to 
incapacity   from   causes   distinct  from 


COMMISSIONS   OF   LUNACY. 


[§  102. 


§  102.  Opinions  of  witnesses  as  to  the  party's  capacity    Opinions  of 
are  as  admissible  as  in  other  cases  of  contested  sanity.^   admissible. 


lunacy.  It  will  be  evident  from  these 
rulings  how  strongly  the  tide  had  turned 
since  Lord  Hardwicke  in  ex  parte  Barns- 
ley,  3  Atk.  169,  A.  D.  1744,  decided 
that,  although  there  might  be  mental 
incapacity  in  a  party,  still  no  return  to 
the  inquisition  would  be  good  which 
did  not  find  the  party  of  unsound  mind. 
And  the  ground  upon  which  he  rested 
this  ruling  was,  that  while  he  was  de- 
sirous of  maintaining  the  prerogative 
of  the  crown  in  its  just  and  proper 
limits,  yet,  at  the  same  time,  he  must 
take  care  not  to  make  a  precedent  of 
extending  the  authority  of  the  crown, 
so  as  to  restrain  the  liberty  of  the  sub- 
ject and  his  power  over  his  own  person 
and  estate,  further  than  the  law  would 
allow. 

"  In  our  own  state,  Chancellor  Kent 
gave  an  early  assent  to  the  doctrine 
announced  in  the  English  decisions, 
and  on  a  similar  question  coming  be- 
fore him,  in  the  case  of  Barker,  2  Johns. 
Ch.  233,  gave  his  entire  approbation  to 
the  course  pursued  by  Lords  Eldon  and 
Erskine.  Barker  was  not  a  lunatic, 
nor  yet  an  idiot,  but  a  feeble-minded 
old  man,  incapacitated  by  advanced 
age  for  the  management  of  his  own 
affairs.  A  commission  was  accordingly 
issued  and  a  finding  of  unsound  mind 
returned.  In  referring  to  the  duty  of 
courts  of  equity  to  issue  commissions  in 
the  nature  of  writs  de  lunatico,  wherever 
there  was  a  reasonable  doubt  of  a  party 's 
capacity  to  manage  his  own  affairs,  the 
chancellor,  while  reviewing  the  English 
authorities,  said : — 

"  Lord  Hardwicke  disclaimed  any  ju- 
risdiction over  the  case  of  mere  weak- 
ness of  mind,  yet  it  is  certain  that  when 


a  person  becomes  mentally  disabled, 
from  whatever  cause  the  disability  may 
arise,  whether  from  sickness,  vice,  cas- 
ualty, or  old  age,  he  is  equally  a  fit  and 
necessary  object  of  guardianship  and 
protection.  The  court  of  chancery  is 
the  constitutional  and  appropriate  tri- 
bunal to  take  care  of  those  who  are  in- 
competent to  take  care  of  themselves. 
There  would  be  a  deplorable  failure  of 
justice  without  such  a  power.  The 
object  is  protection  to  the  helpless,  and 
the  imbecility  of  extreme  old  age,  when 
the  powers  of  memory  and  judgment 
have  become  extinct,  seems,  as  much  as 
the  helplessness  of  infancy,  to  be  within 
the  reason  and  necessity  of  the  trust. 

"And  proceeding  further  to  justify 
the  issuing  of  commissions  in  cases  of 
general  mental  incapacity  without  the 
presence  of  actual  insanity,  he  observed: 
'  It  is  evident  that  Barker  is  not  a  luna- 
tic, within  the  legal  meaning  of  the 
term.  He  is  not  a  person  who  some- 
times has  understanding  and  sometimes 
not.  He  is,  rather,  of  that  class  de- 
scribed by  Lord  Coke  as  non  compos 
mentis.'     Co.  Litt.  246  b. 

"An  inquisition  may,  therefore,  be 
awarded  for  any  cause  which  substan- 
tially incapacitates  a  party  to  manage 
his  affairs.  It  matters  not,  therefore, 
whether  the  party  be  reduced  to  this 
condition  by  disease,  or  old  age,  or  ha- 
bitual intoxication.  Ex  parte  Tracy,  1 
Paige,  580. 

"  Any  thing  which  reduces  the  men- 
tal capacity  of  an  individual  to  such  a 
degree  as  to  permanently  unfit  him  to 
comprehend  the  nature  and  necessities 
of  his  own  affairs,  to  take  in  the  posi- 
tion which  those  affairs  occupy  to  others, 


•  See  Wh.  on  Ev.  §  451  ;  Winslow  on  Med.  Leg.  Ev.  in  Insau.  129. 
VOL.  I. — 7  97 


§  103.]      MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

§  103.  In  a  trial  in  1868,  in  Pennsylvania,  proceedings  were 
commenced  by  the  commonwealth  to  inquire  whether   Elizabeth 


and  the  provision  necessary  to  be  made 
to  secure  himself  against  the  ordinary- 
risks  and  contingencies  of  business, 
may  be  said  to  render  him,  in  contem- 
plation of  law,  unfit  to  manage  his 
affairs.  Although  not  properly  a  luna- 
tic, he  is  still  in  the  eye  of  the  law  non 
compos  mentis,  and  a  proper  subject  for 
an  inquisition  of  lunacy. 

' '  However  probable  may  be  the  ex- 
istence of  the  fact  of  lunacy,  it  must 
still  be  sufSciently  well  substantiated 
to  satisfy  the  judgment  of  the  court  to 
which  application  for  a  commission  is 
made,  since  the  court  cannot  act  on  con- 
jecture alone.  Therefore,  in  Sherwood 
V.  Sanderson,  19  Ves.  286,  Lord  Eldon 
observed  that  '  before  a  commission 
issues,  the  duty  of  that  person  who  has 
authority  to  issue  it  requires  him  to 
have  evidence  that  the  object  of  the 
commission  is  of  unsound  mind  and  in- 
capable of  managing  his  affairs,  and 
for  that  purpose  the  evidence  of  medical 
men  is  generally  produced.' 

' '  But  it  is  not  every  case  of  mental 
weakness  or  imbecility  which  will  au- 
thorize a  court  of  equity  to  exercise  the 
power  of  appointing  a  committee  of  the 
person  and  estate.  In  order  to  justify 
the  exercise  of  such  a  power,  it  has 
been  held  that  the  mind  of  the  indi- 
vidual must  be  so  far  impaired  as  to  be 
reduced  to  a  state  which,  as  an  original 
incapacity,  would  have  constituted  a 
case  of  idiocy.  Matter  of  Morgan,  7 
Paige,  236  ;  Matter  of  Shaul,  40  How. 
Pr.  204.  Although  there  certainly  are 
degrees  in  idiocy,  it  is  doubtful  whether 
the  standard  thus  selected,  as  popularly 
understood,  is  not  a  lower  one  than 
courts  could  generally  or  even  safely 
adopt  in  exercising  guardianship  over 
the  feeble-minded.  Every  day  fur- 
nishes evidence  of  the  existence  of  cer- 

98 


tain  minds  which,  far  above  idiocy  in 
intensity  and  extensity  of  power,  are 
yet  shown  by  experience  to  be  incapable 
of  governing  themselves  or  managing 
their  affairs.  Without  being  idiots, 
they  are  still  capable  of  being  included 
among  the  non  compos  class.  It  was  to 
this  feeble  class  that  Lord  Hardwicke 
referred,  when  he  observed  that  it 
might  be  well  if  a  curator  or  tutor 
should  be  set  over  prodigal  and  weak 
persons,  as  in  the  civil  law.  Ex  parte 
Barnsley,  3  Atk.  169." 

See,  to  same  effect,  Nailor  v.  Nailor, 
4  Dana,  339  ;  Shaw  v,  Dixon,  6  Bush, 
644.  It  is  competent,  under  the  stat- 
utes, to  appoint  a  conservator  for  the 
estate  of  an  insane  married  woman, 
and,  upon  proper  showing,  to  decree  a 
sale  and  conveyance  of  her  estate,  al- 
though, when  the  statutes  were  passed, 
the  common  law  governing  the  rights 
of  married  women  obtained  in  the  state. 
Conveyances  by  conservators  are  con- 
veyances made  by  the  law  for  the  bene- 
fit of  the  lunatic,  and  are  analogous  to 
conveyances  by  guardians  and  adminis- 
trators, and  are  in  no  sense  to  be  re- 
garded as  conveyances  by  the  lunatic. 
Where  the  court  had  jurisdiction  to 
decree  such  a  sale,  a  proper  petition 
was  filed,  and  all  the  parties  in  interest 
were  before  the  court,  whether  the 
court  judged  correctly  in  regard  to  the 
property  in  question  being  the  kind  or 
class  of  property  of  which  a  sale  should 
be  decreed,  or  in  regard  to  the  neces- 
sity of  a  sale,  cannot  be  inquired  into 
in  a  collateral  proceeding.  Gardner  v. 
Maroney,  95  111.  552. 

That  the  court  will  issue  a  commis- 
sion on  a  primd  facie  case,  see  Tomlin- 
son  ex  parte,  1  Ves.  &  Beav.  57. 

The  procedure  must  be  conducted 
under  the  same  sanction  as  other  judi- 


COMMISSIONS   OF   LUNACY. 


[§  103. 


Schneider  was  a  lunatic,  etc.     The  inquisition  finding   Ability  to 

.  1  1  •  f  1    1        ii  L      manage 

the  respondent  a  lunatic  was  confirmed   bj  the  court,    business 


cial  investigations.  Lincoln  ex  parte, 
1  Brewst.  392  ;  Pettit  ex  parte,  2  Paige, 
174  ;  Russell  ex  parte,  1  Barb.  Ch.  38. 
The  commissioners  may  compel  the 
production  of  the  lunatic  before  them 
for  their  inspection  and  that  of  the 
jury,  if  deemed  desirable,  and  this,  in 
all  cases  wherever  possible,  should  be 
done.  2  Barb.  Ch.  Pr.  233;  Russell 
ex  parte,  1  Barb.  Ch.  38.  Should  any 
custodian  of  the  lunatic  or  other  person 
interpose  to  prevent  this  inspection,  he 
may  be  punished  for  contempt.  This 
was  done  in  Lord  Wenman's  case, 
where  Lady  Wenman,  who  was  an 
Irish  peeress,  and  had  charge  of  her 
husband,  was  committed  for  contempt 
for  not  producing  him  when  required 
(1  P.  Wms.  701).  If  the  persons  hav- 
ing charge  of  the  lunatic  carry  him  out 
of  the  state,  the  commission  may  still 
he  executed  in  his  absence.  See  Ordro- 
naux,  ux  supra. 

It  is  the  duty  of  the  sheriff  alone  to 
select  and  to  summon  the  jurors,  and  it 
is  both  improper  and  irregular  for  the 
commissioners  to  dictate  what  persons 
are  to  be  summoned.  Wager  ex  parte, 
6  Paige,  11. 

"  In  conducting  the  trial  it  is  usual 
for  the  person  first  named  upon  the 
commission  to  act  as  president ;  to  ad- 
minister the  oath  to  the  jury  ;  to  read 
and  explain  the  commission  to  them  ; 
to  swear  and  examine  the  witnesses, 
who  must  testify  both  as  to  the  lunacy 
of  the  party,  his  next  of  kin,  and  the 
value  of  his  real  and  personal  property. 
And  some  one  of  the  commissioners 
should  also  charge  and  instruct  the 
jury  as  to  the  matters  to  be  found  by 
them  in  their  verdict.  2  Barb.  Ch.  Pr. 
233."     Ordronaux,  ut  supra. 

In  Arnhout  in  re,  1  Paige,  497, 
Chancellor  Walworth,  in  directing  the 


manner  in  which  the  jury  should  be 
charged,  says,  "  but  without  argument 
of  counsel  on  either  side. "  On  this  Prof. 
Ordronaux  makes  the  following  just 
criticism.  "Now,  since  it  was  always 
a  settled  rule  of  practice  in  our  court 
of  chancery,  that  any  party  against 
whom  a  commission  of  lunacy  was 
awarded  could  be  represented  by  coun- 
sel (1  Moulton's  Ch.  Pr.  110),  we  know 
of  no  principle  of  law  which  would 
authorize  the  commissioners  to  refuse 
permission  to  such  counsel  to  address 
the  jury.  For  it  might  become  a  very 
essential  part  of  his  duty  to  enlighten 
the  jury  upon  the  value  or  significance 
of  the  evidence  introduced,  and  we  do 
not  well  see  how,  without  great  injus- 
tice to  the  parlies  interested,  any  coun- 
sel could  legally  be  restricted  to  the  ex- 
amination of  witnesses  alone.  Such  a 
restriction  has  certainly  never  existed 
in  England,  and  the  question,  there- 
fore, has  never  called  for  special  adju- 
dication. Nor  if  raised  before  any  of 
our  courts  do  we  believe  it  would  re- 
ceive any  countenance." 

In  Arnhout  in  re,  1  Paige,  497, 
Chancellor  Walworth  laid  down  the 
following  additional  rules,  viz, :  The 
jury  are  to  be  instructed  that,  if  twelve 
or  more  of  them  find  that  the  party  is 
not  incompetent,  they  are  to  deliver 
their  verdict  accordingly,  or  if  the 
same  number  decide  against  his  com- 
petency, that  they  then  find  and  deter- 
mine the  other  facts  directed  to  be 
inquired  of,  and  that  if  twelve  of  them 
cannot  agree  either  way,  they  report 
the  facts  to  the  commissioners  in  order 
that  their  return  be  made  accordingly. 
And  in  relation  to  every  legal  question 
arising  in  the  execution  of  the  commis- 
sion, a  majority  of  the  commissioners 
must  decide.     Ordronaux,  ut  supra 

99 


§  104.]      MENTAL   UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 

the  test  of     The  respondent  traversed   the   finding.      On   the  trial 
tency.  the  court  of  common  pleas  charged  (inter  alia),  "Until 

the  mind  is  entirely  blotted  out,  persons  must  be  left  to  the 
management  of  their  own  affairs.  As  long  as  there  is  a  spark  of 
intelligence  left,  the  law  does  not  permit  their  liberty  to  manage 
themselves  or  property  to  be  taken  from  them."  A  writ  of  error 
was  taken  out,  which  assigned  for  error  the  portion  of  the  charge 
just  quoted.  In  the  supreme  court,  the  opinion  was  delivered  by 
C.J.  Thompson,  who  said:  "The  truth  and  practical  test  under 
this  proceeding  is  this— Utter  and  unmitigated  madness,  or  abso- 
lute and  hopeless  idiocy,  resulting  from  cerebral  injury  or  disease, 
or  want  of  intellect  from  nativity,  are  by  no  means  the  only  tests. 
The  protection  of  property  is  one,  if  not  the  main  object  of  the 
statute  ;  it  is  practical,  that  the  test  of  liability  to  a  commission, 
should  depend  greatly  on  that  unsoundness  of  mind  which  discloses 
incompetency  to  its  management,  and  the  care  and  protection  of  it 
in  a  rational  manner ;  and  this  is  the  rule  in  England."  He  then 
cited  English  authority  to  sustain  him,  and  said :  "  The  learned 
judge  fell  into  an  error,  by  following  the  lead  of  Beaumont's  case, 
1  Wharton,  52,  which  seems  mainly  to  have  rested  on  Barnsley's 
case,  3  Atk.  168,  which  we  have  seen  Lord  Eldon  refused  to  follow 
in  Ridgway  v.  Darwin."^ 

§  104.  A  petition  for  a  commission  de  lunatico  inquirendo  was 
But  mere  presented  by  the  son  of  Sarah  Collins,  in  1867,  to  the 
old  age         chancellor  of  New  Jersey,  applyina;  for  a  commission  to 

does  not  .  ,  , 

incapaci-  take  charge  of  his  mother  s  person  and  estate.  She 
was  in  the  hundredth  year  of  her  age,  her  hearing  was 
somewhat  impaired,  and  her  sight  very  much  so.  The  weight  of 
the  medical  testimony,  however,  was  in  favor  of  her  soundness 
of  mind.  The  court  held  that  there  was  no  presumption  against 
her  soundness  from  her  extreme  age.  "  She  may,"  says  the 
chancellor,  "  be  so  weak  and  infirm  as  to  be  easily  influenced,  or 
imposed  upon,  which  would  be  a  reason  for  setting  aside  any  in- 
struments or  transactions  executed  under  the  effect  of  such  influ- 
ence, but  this  does  not  amount  to  unsoundness  such  as  to  take  from 
her  the  control  of  herself  and  her  property."^ 

>  Com.  V.  Schneider,    59    Penn,    St.         «  Collins    in   re,  18   N.  J.    Eq.    253. 
328  ;  S.  P.  Watson's   Interdiction,  31     See  ante,  §  87. 
La.  Ann.  757. 

100 


COMMISSIONS    OF   LUNACY.  [§  105. 

§  104  a.  In  a  case  which  attracted  much  popular  attention  at 
the  time,^  Chief  Baron  Pollock  declared,  that  "  no  person    Harmless 
ou^ht  to  be  confined  in  a  lunatic  asylum  unless  dan^ierous    lunatics 

°  ...  confined 

to  himself  and  others."  This  dictum^  which  startled  when 
both  the  legal  and  the  medical  professions  at  its  utterance, 
has  been  combated,  and  with  great  ability,  by  very  eminent  psycho- 
logical authority,^  and  has  not  been  followed  by  the  current  of 
American  judicial  opinion.  There  are  necessarily  cases  when  the 
safety  of  property  and  the  health  of  the  patient  himself,  require 
confinement  in  an  asylum,  though  there  be  no  danger  of  violence 
to  himself  and  others,  and  it  is  not  likely  that  the  existence  of  such 
cases  will  be  again  judicially  questioned.  Whether  the  confine- 
ment, in  any  particular  case,  was  proper  or  not,  will  be  for  the 
court  and  jury,  if  an  action  of  false  imprisonment  be  brought,  to 
determine  specially.  And  the  law  in  such  a  case  undoubtedly  is, 
that  confinement  is  justifiable,  if  the  safety  either  of  the  patient  or 
of  others  requires  it,  or  it  is  necessary  for  his  restoration  to  health.^ 

But  the  general  practice  is,  not  to  direct,  even  under  a  finding 
of  lunacy,  the  confinement  of  the  lunatic,  except  such  confinement 
be  required  by  public  peace  and  morals,  or  by  the  interest  of  the 
patient.* 

§  105.  In  respect  to  drunkenness,  the  law  is,  that,  while  occa- 
sional acts  of  intoxication  will  not  justify  a  finding  of 
"  habitual"  drunkenness,  yet,  on  the  other  hand,  it  is  not   stitutes 
necessary  for  such  a  finding  that  the  party  should  be  con-   ^j^Qj^^ard 
stantly  in  an  intoxicated  state.     Thus,  in  Pennsylvania, 

*  Nottridge  v.  Ripley,   before   Chief  tive  to  the  case  of  Nottridge  v.  Ripley, 

Baron   Pollock,    sitting   at  nisi  prius,  Dundee,  1849. 

June,  1849,  reported  in  full  in  Journ.         ^  Hinclinian   v.  Richie,  Brightly  R. 

of  Psyc.  Med.  vol.  ii.  p.  630.  143.     Under  the  Louisiana  code  there 

2  See  a  remonstrance  with  the  lord  are  three  things   necessary  to  justify 

chief    baron,    touching    the    case    of  the  interdiction  of  a  party  as  insane : 

Nottridge  v.  Ripley,  by  John  Conolly,  1.  The  absolute  incapacity  to  admin- 

M.D.,    1849.      A  letter    to    the    lord  ister  one's  estate;  2.  The  absolute  in- 

chancellor   on   the  defect   of  the  law  capacity  to  take  care  of  one's  person  ; 

regulating  the  custody  of  lunatics,  by  and   3.    An    actual    and   unavoidable 

Charles  Curten  Cooper,  London,  1849.  necessity  to  interdict.     Francke  v.  His 

Psychological  Review,  vol.  ii.  p.  564;  Wife,  29  La.  Ann.  302. 
ib.   vol.    iii.    p.   14.     A   letter    to   the         *  Com.  v.  Kirkbride,  2  Brewst.  400. 

Right  Hon.  Lord  Ashley,  M.  P.,  rela-  See  King's  Co.  Asylum  in  re,  7  Abb.  N. 

C.  (N.  Y.)  425. 

101 


§  105.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

Knox,  P.  J.,  in  putting  the  case  upon  a  traverse  to  the  jury,  said: 
"  Neither  was  it  necessary  to  make  out  the  case  that  a  person  should 
be  constantly  in  an  intoxicated  state  ;  that  a  man  might  be  an 
habitual  drunkard,  and  yet  be  sober  at  times  for  days  and  weeks 
together.  That  the  question  was,  had  the  traverser  a  fixed  habit 
of  drunkenness  ?  Was  he  habituated  to  intoxication  whenever  the 
opportunity  offered  ?  The  question  is  one  of  fact  for  the  jury  to 
find,  but  the  court  has  no  hesitation  in  saying,  that  the  man  who 
is  intoxicated  or  drunk  one-half  of  his  time,  should  be  pronounced 
an  habitual  drunkard."  And,  in  the  supreme  court,  Rogers,  J., 
said :  "  To  constitute  an  habitual  drunkard,  it  is  not  necessary  that 
a  man  should  be  always  drunk.  It  is  impossible  to  lay  down  any 
fixed  rule  as  to  when  a  man  shall  be  deemed  an  habitual  drunkard. 
It  must  depend  upon  the  decision  of  the  jury  under  the  direction  of 
the  court.  It  may,  however,  be  safely  said,  that  to  bring  a  man 
within  the  meaning  of  the.  act,  it  is  not  necessary  that  he  should 
always  be  drunk.  Occasional  acts  of  drunkenness,  as  the  judge 
says,  do  not  make  one  an  habitual  drunkard.  Nor  is  it  necessary 
he  should  be  continually  in  an  intoxicated  state.  A  man  may  be 
an  habitual  drunkard,  and  yet  be  sober  for  days  and  weeks  together. 
The  only  rule  is,  has  he  a  fixed  habit  of  drunkenness  ?  Was  he 
habituated  to  intemperance  whenever  the  opportunity  offered  ?  We 
agree  that  a  man  who  is  intoxicated  or  drunk  one-half  his  time 
is  an  habitual  drunkard,  and  should  be  pronounced  such.  We  also 
concur  with  the  court,  that,  if  the  jury  found  the  traverser  to  have 
been  at  the  date  of  the  inquisition  an  habitual  drunkard,  it  was 
necessary  to  decide  whether  he  was  capable  or  incapable  of  man- 
aging his  estate.  His  incapacity  in  that  event  is  a  conclusion  of 
law.  It  is  not  necessary  to  say,  it  is  a  presumptio  juris  et  de  jure; 
but,  at  least,  it  throws  the  burden  of  proof  of  capacity  on  the  tra- 
versers. Indeed,  it  may  be  well  doubted,  whether  his  management 
or  mismanagement  of  his  estate  is  a  matter  of  inquiry.  It  is  very 
certain,  under  the  act  of  the  13th  of  June,  1836,  proceedings  may 
be  instituted  against  an  habitual  drunkard  Avho  has  no  estate.  But 
this  cannot  be  if  the  mismanagement  of  it  be  necessary.  It  is  well 
said,  that  there  must  be  an  evidence  of  squandering  property,  to 
support  a  proceeding  to  declare  an  individual  an  habitual  drunkard, 
else  the  object  of  the  act  in  many  cases  would  be  defeated.  For  it 
102 


COMMISSIONS   OF   LUNACY.  [§  106. 

is  precautionary  in  its  design,  and  hence  a  disposition  of  mind  or 
body  which  might  lead  to  the  wasting  of  an  estate,  is  sufficient  to 
justify  the  enforcement  of  its  provisions.^  It  is  indeed  impossible 
that  a  man  can  be  an  habitual  drunkard  without  waste  or  mis- 
management, as  the  very  act  of  drunkenness  is  itself  waste.  In 
this  case,  even  if  required,  the  evidence  was  full  and  plenary  to  this 
point. "2 

So,  also,  has  it  been  held  in  Vermont,  that  an  habitual  drunkard 
"  is  one  who  is  in  the  habit  of  getting  drunk,  or  one  who  commonly 
or  frequently  gets  drunk,"  not  that  he  is  constantly  or  universally 
drunk  .^ 

§  106.  An  order  was  made  on  23d  November,  1861,  in  the  Eng- 
lish chancery,  for  a  commission  in  the  case  of  William   gxtrava- 
Frederick  Windham,  of  Felbrigg  Hall,  Norfolk.     The   gance  and 

.  .  T  .  profligacy 

petitioner's  case  was  imbecility  and  a  consequent  ma-  need  not 
bility  on  the  part  of  the  respondent  to  manage  his  own  i^n^ompe- 
estate.  It  appeared  that  he  was  sent  in  his  boyhood  to  tency. 
Eton ;  but  that  while  in  that  school  his  conduct  was  so  unique  and 
extravagant  as  to  lead  to  the  belief  that  he  was  at  that  time 
deranged.  As  he  became  older,  these  peculiarities  became  more 
marked.  He  Avas  extravagant  and  absurd  in  his  purchases ;  he 
incurred  enormous  debts  ;  he  was  guilty  at  public  places  of  gross 
indecency  which  the  presence  of  ladies  did  not  restrain ;  his  asso- 
ciates were  among  the  uneducated  and  the  profligate  ;  and  three 
weeks  after  he  came  of  age  he  married  a  woman  of  disreputable 
character,  knowing  that  up  to  the  night  before  the  marriage  she 
had  cohabited  with  one  of  his  associates  as  the  latter's  mistress. 
Although  his  income  at  this  time  was  not  more  than  ■£1580,  he 
presented  her,  shortly  after  his  marriage,  with  jewelry  valued  be- 
tween jel2,000  and  .£14,000,  and  settled  on  her  absolutely  £800 

1  Sill  V.  McNight,  7  W.  &  S.  245.  It  is,  therefore,  not  the  province  of  the 

2  Ludwick  V.  Com.,  18  Penn,  St.  173.  jury,  upon  a  traverse  of  the  inquisi- 
In  McGinnis  v.  Com.,  74  Penn.  St.  245,  tion,  to  determine  the  extent  of  the 
Agnew,  J.,  said:  "It  is  sufficient  to  traverser's  ability  to  transact  his  busi- 
find   the   person   an   habitual  drunk-  ness." 

ard.     The  legal  consequences  flow  from        ^  state  v,  Pratt,  34  Vt.  323.     As  to 

that  fact,  and  not  from  any  supposed  or  what  constitutes  habitual  drunkenness 

actual  capacity  of  the  habitual  drunk-  in  a  criminal  sense,  see  Wh.  Cr.  L.  8th 

ard  to  manage  his  business  well.     .     .  ed.  §  1447. 

103 


§  106.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

per  annum.  Although,  after  her  marriage,  she  cohabited,  to  his 
knowledge,  with  another  man,  he  condoned  this  act,  continuing  to 
live  with  her.  His  habits  were  devoid  of  cleanliness;  and  he  some- 
times displayed  utter  callousness.  Unfortunately,  when  the  ques- 
tion came  to  be  tried,  there  was  the  usual  conflict  of  opinion  among 
the  experts.  Dr.  Forbes  Winslow  and  Dr.  Mayo,  it  it  true,  whom 
the  court  appointed  medical  examiners,  and  Dr.  Bright,  who  was 
associated  with  them  as  assessors,  united  in  the  emphatic  opinion 
that  the  respondent  was  in  a  state  of  mental  imbecility,  and  was 
incapable  of  managing  his  own  affairs.  Dr.  Southey,  who  was  ap- 
pointed subsequently  by  the  lord  justices  as  an  additional  examiner, 
came  to  the  same  result.  On  the  other  hand.  Dr.  Tuke,  Dr. 
Sutherland,  Dr.  Hood,  Dr.  Seymour,  and  Dr.  Conolly  testified, 
that,  in  their  opinion,  Mr.  Windham  was  sane  and  of  sound  business 
capacity ;  and  Dr.  Tuke,  in  particular,  sustained  this  position  on 
the  ground  (1)  of  Mr.  Windham's  remarkable  powers  of  observa- 
tion, and  (2)  of  the  skill  with  which  he  had  conducted  his  defence. 
Mr.  Warren,  master  in  chancery,  charged  the  jury  that  "  the  ques- 
tion to  be  decided  was  not  whether  Mr.  Windham  was  absolutely 
insane,  but  whether  there  was  such  imbecility  of  mind,  not  amount- 
ing to  insanity,  as  to  render  him  liable  to  be  robbed  by  any  one. 
The  broad  question  was  whether  he  was  of  sufficiently  sound  mind 
to  be  intrusted  with  the  management  of  himself  and  his  affairs. 
Mere  weakness  of  character,  mere  liability  to  impulse,  good  or  bad, 
mere  imprudence,  recklessness,  and  eccentricity  did  not'  constitute 
unsoundness  of  mind,  unless,  in  looking  fairly  at  the  whole  of  the 
evidence,  there  was  good  reason  to  refer  them  to  a  morbid  condition 
of  intellect.  They  might  furnish  evidence  of  unsoundness,  but  they 
did  not  constitute  it."  The  jury,  by  a  majority  of  15  to  8,  returned 
as  a  verdict  that  "  Mr.  Windham  is  of  sound  mind  and  capable  of 
taking  care  of  himself  and  his  affairs."  "After  the  verdict  was 
returned,"  says  Dr.  Taylor,^  "  he  was  guilty  of  many  extravagant 
acts,  exhausted  a  splendid  fortune  and  became  a  bankrupt ;  showing 
that,  whatever  legal  soundness  of  mind  he  might  possess  in  the 
opinion  of  two-thirds  of  the  jury,  he  practically  did  not  evince  that 

'  Taylor's  Med.  Jur.,  Penrose's  ed.    Winter,  reported  in  26  Am.  Journal  of 
p.  665.    A  case,  corresponding  in  many    Ins.  47. 
respects   with   the    above,    is   that   of 

104 


COMMISSIONS    OF   LUNACY.  [§  107. 

capacity  which  they  declared  him  to  possess  in  taking  care  of  him- 
self or  his  affairs."  But  Dr.  Taylor,  in  citing  bankruptcy,  and 
even  waste,  as  evidence  of  want  of  business  capacity,  mistakes  the 
purport  of  laws  instituting  commissions  of  lunacy.  They  are  not 
designed  to  place  men,  who  are  simply  extravagant  or  reckless,  in 
the  hands  of  a  committee,  for,  if  so,  all  business  Avould  be  at  a 
standstill,  and  half  the  estates  of  the  country  Avould  in  a  few  years 
be  placed  in  chancery.  The  question  for  such  commission  simply 
is,  Is  the  respondent  incapable  from  mental  unsoundness  of  managing 
his  own  affairs  ?  If  capable,  he  must  be  allowed  to  contribute  his 
own  energies  and  means  to  that  volume  of  public  wealth  whose  ebb 
and  flow  are  essential  to  the  economical  activity  of  the  state.  He 
must  take  his  chance,  and  learn,  if  he  can,  from  the  discipline  of 
life,  that  wisdom  which,  perhaps,  he  may  not  at  first  display. 
"  Mere  extravagance  or  follies,"  as  declared  by  Lord  Chelmsford 
when  commenting  on  this  case  in  the  House  of  Lords,  "  are  not, 
therefore,  sufficient,  unless  the  imbecility  amounted  to  unsoundness 
of  mind."^ 

§  107.  If  a  commission  be  found  to  have  been  irregular  in  its 
inception  or  execution,  or  if  substantial  justice  has  not 
been  done,  either  the  commission  may  be  quashed,  or,  if  in^^smaybe 

it  has  matured  into  an  inquisition,  the  inquisition  may    ?*'*  ^^"^^^  ^^ 
_   _^_  '  ^  "      irregular  or 

be  set  aside.     Thus  inquisitions  have  been  set  aside  be-   inequit- 

able. 

cause  of  undue  interference  by  the  commissioners  with 
the  summoning  of  the  jury  f  because  the  sheriff  improperly  inter- 
fered with  the  deliberations  of  the  jury  ;3  because  the  alleged  lunatic 
had  no  notice  given  him  of  its  occurrence  ;*  because  a  stranger  was 
appointed  committee  without  the  assent  of  the  relatives  of  the 
lunatic  and  without  a  reference  ;^  because  the  commissioners  refused 
to  issue  subpoenas  in  behalf  of  the  alleged  lunatic  f  because  upon 
the  personal  examination  of  the  lunatic  by  the  court,  and  of  the 

'  And  where,  by  statute,  a  guardian  "  Wager  inre,  6  Paige,  11. 

may  be  appointed  for  a  spendthrift,  to  *  Arnhout  in  re,  1  Paige,  497. 

warrant  such  appointment  there  must  *  Tracy  in  re,  1  Paige,  580. 

be    evidence    of    excessive    drinking,  s  Lamoree's  case,   11   Abb.  274 ;  S. 

gaming,    debauchery,    and    the    like.  C,  32  Barb.  122,  and  19  How.  Pr.  375. 

Proof  of  weak-minded  habits   in   the  6  Ex  parte  Plank,  3  Am.  L.  J.,  N.  S. 

management  of  money  is  not  enough.  518. 
Morey's  Appeal,  57  N.  H.  54. 

105 


§  107.]       MENTAL    UNSOUNDNESS   IN   ITS    LEGAL   RELATIONS. 

evidence  adduced  upon  the  trial,  the  court  held  that  the  jury  erred 
in  finding  their  verdict;  though  in  such  case  the  introduction  of  new 
evidence,  where  no  valid  reason  can  be  shown  why  the  same  was 
not  produced  upon  the  trial,  will  not  be  permitted  ex  ixirte  to  con- 
tradict the  verdict,  unless  there  has  been  gross  error  or  undue  pre- 
judice exhibited  on  the  part  of  the  jury.^ 

The  inquisition,  also,  is  defective,  if  it  does  not  conform  to  the 
statute  in  its  finding  ■,^  though  a  mere  misnomer  of  the  lunatic  in  the 
inquisition  and  other  proceedings  will  not,  of  itself,  invalidate  them. 
For  this  may  be  amended  by  an  order  entering  such  amendment  into 
future  documents  in  which  such  lunatic's  name  is  mentioned,  the  only 
point  to  be  considered  being  the  establishment  of  his  identity.^ 

Where  the  inquisition  and  proceedings  have  been  set  aside,  for 
any  cause,  a  second  commission  cannot  be  issued  on  the  original 
petition,  because  the  continuance  of  the  reasons  upon  which  the 
first  was  based  cannot  be  presumed  at  law,  but  must  be  proved 
de  novo.*- 

»  Russell  in  re,  1  Barb.  Ch.  38  ;  Te-  "  Crawford  in  re,  1  Myl.  &  Cr.  240 ; 

bout  in  re,  9  Abb.  211 ;  Ordronaux,  ut  Ordroiiaux,  ut  supra, 

supra,  222-250.  *  Hincbman  v.  Ricliie,  Brigbt.  144, 

2  Morgan  in  re,  7  Paige,  236.  182 ;  Ordronaux,  ut  supra. 

106 


INSANITY   AS    A   DEFENCE    TO    CHARaE    OF   CRIME. 


CHAPTER  IV. 


INSANITY  AS  A  DEFENCE  TO  CHARGE  OF  CKBIE. 


I.  General  Rule. 

Theory  that  insanity  is  a  question  ex- 
clusively of  fact,  §  108. 

Objections  to  this  view,  §  109. 

Term  "mental  disease"  includes  every 
phase  of  passion,  §  110. 

And  is  ambiguous,  §  111. 

Definition  of  insanity  must  come  from 
court,  not  experts,  §  112. 

Jury  not  qualified  to  decide  question  of 
law,  §  113. 

Question  rests  with  judges,  §  115. 

II.  Special  Exceptions. 
Enumeration  of  exceptions,  §  116. 

1.  Where  the  defendant  is  incapable  of  dis- 
tinguishing right  from  wrong  in  reference 
to  the  particular  act. 

Idiots  and  maniacs  irresponsible,  §  117. 

English  relaxation  of  rule  in  such  case, 
§118. 

General  test  is  knowledge  of  right  and 
wrong,  §  119. 

Right  and  wrong  test  generally  satis- 
factory, §  120. 

But  with  exceptions,  §  121. 

Insanity  coexisting  with  power  to  dis- 
tinguish right  from  wrong  should 
diminish  responsibility,  §  122. 

"  Moral  insanity"  no  defence,  §  123. 

Otherwise  with  insane  delusions,  §  124. 

2.  When  the  defendant  is  acting  under  an 
insane  delusion  as  to  circumstances  which, 
if  true,  luould  relieve  the  act  from  respon- 
sibility, or  where  his  reasoning  pouters 
are  so  depraved  as  to  make  the  commis- 
sion of  the  particular  act  the  natural 
consequence  of  the  delusion. 

In  England  delusions  may  be  a  defence, 

§  125. 
And  so  in  this  country,  §  126. 


Delusions  must  be  objective,  §  127. 

Illustrated  by  Levett's  case,  §  128. 

Delusion  to  be  determined  from  defend- 
ant's stand-point,  §  129. 

So  as  to  delusion  as  to  danger,  §  130. 

So  as  to  delusion  as  to  the  party  at- 
tacked, §  131. 

So  as  to  delusion  as  to  supernatural 
commands,  §  132. 

Guilty  consciousness  may  be  consistent 
with  irresponsibility.  English  rule 
to  this  effect,  §  133, 

So  held  in  America,  §  134. 

Distinction  between  objective  and  sub- 
jective delusions,  §  135. 

Where  reason  can  dispel  subjective  de- 
lusion, responsibility  exists,  §  136. 

Subjective  delusions  must  be  insane  to 
destroy  responsibility,  §  137. 

And  proved  to  be  so,  §  138. 

Where  party  is  otherwise  sane  respon- 
sibility remains,  §  139. 

Illustrations,  §  140. 

Danger  of  assigning  irresponsibility  to 
delusions,  §  141. 

Prior  insanity  a  test,  §  142. 

So  of  heredity,  §  143. 

Proof  that  delusion  is  sane  competent, 
§  144. 

Delusion  unconnected  with  crime  no 
defence,  §  145. 

3.  Where  the  defendant,  being  insane,  is 
forced  by  a  morbid  and  irresistible  im- 
pulse to  do  the  particular  act. 

Irresistible  impulse  distinct  from  moral 
insanity  and  passion,  §  146. 

With  the  sane,  no  impulse  irresistible, 
§147. 

Punishment  necessary  to  prevent  crime, 
§  148. 

Fear  a  check  on  passion,  §  149. 

107 


§  108.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 


"  Irresponsibility"  impossible  to  de- 
termine, §  150. 

Material  theory  of  volition  incorrect,  § 
150  a. 

Passion  Is  a  mitigating  element,  §  151. 

Authorities  for  defence  of  "  irresistible 
impulse,"  §  152. 

Instances  of  irresponsibility  coexisting 
with  guilty  consciousness,  §  153. 

Opinion  of  Chief  Justice  Shaw,  §  156. 

Of  Chief  Justice  Gibson,  §  157. 

Of  Judge  Lewis,  §  158. 

Insane  uncontrollable  impulse  recog- 
nized in  Illinois  and  Indiana,  §  159. 

And  in  Ohio,  Minnesota,  Kentucky, 
and  Iowa,  §  160. 

Contra  in  North  Carolina  and  other 
states,  §  161. 

Mania  transitoria,  not  a  defence,  §  162. 

4.  '^ Moral  Insanity'^  (i.  e.,  a  supposed 
insanity  of  the  moral  sense  claimed  to 
coexist  with  mental  sanity)  is  no  defence. 

"  Moral  insanity"  is  no  defence,  §  163. 

This  affirmed  in  England,  §  164. 

In  Townley's  case,  §  165. 

In  Watson's  case,  §  166. 

And  in  Edmund's  case,  §  167. 

So  in  United  States,  §  174. 

Exception  in  Kentucky,  §  175. 

Analysis  of  objections  to  "moral  in- 
sanity," §  183. 

Doctrine  inconsistent  with  safety  of 
community,  §  184. 

States  must  enforce  exercise  of  reason, 
§185. 

Not  to  reform  guilt  is  to  encourage  it, 
§186. 

Imprisonment  should  depend  on  convic- 
tion of  specific  crime,  §  187. 


Moral  sense  to  be  built  up  by  state,  § 

188. 
Efficiency  of  penal  discipline  for  this 

purpose,  §  189. 

5.  While  experts  may  be  called  to  testify 
as  to  states  of  mind  and  conditions  of 
health,  it  is  for  the  courts  to  declare 
whether  such  states  and  conditions  consti- 
tute irresponsibility. 

Such  the  general  rule.  Exception  in 
New  Hampshire,  §  190. 

Opinion  in  the  case  of  State  v.  Pike,  § 
191. 

Prevalent  opinion  is  that  question  of 
irresponsibility  is  for  court,  §  193. 

Difficulty  in  obtaining  full  expert  testi- 
mony, §  194. 

Such  testimony  is  partial  and  imper- 
fect, §  195. 

Extravagance  of  the  theories  it  brings 
out,  §  196. 

No  tribunal  exists  to  decide  conflict  of 
experts,  §  3  97. 

Court  must  weigh  testimony  of  experts, 
§  198. 

And  decide  upon  it,  §  199. 

Responsibility  is  a  judicial  question, 
§  199  a. 

6.  Predisposition  to  insanity  as  loivering 
the  grade  of  guilt. 
Capacity  of  party,  measure  of  guilt,  § 
200. 

7.    Capacity  of  insane  defendants  to  plead. 
Preliminary  inquest  on  formal  plea  of 

insanity,  §  200  a. 
Insane  defendant  incompetent  to  plead, 

§201. 


I.    GENERAL  RULE.^ 

§  108.  Two  preliminary  questions  meet  us  as  we  enter  on  the 
discussion  of  criminal   responsibility.     The   first  is,  whether   the 

'  The  consideration  to  be  given  to  of  New  Hampshire,  in  a  charge  to  the 
this  species  of  defence  was  thiis  justly  grand  jury:  "The  public  papers,  in 
and  humanely  stated  by  Parker,  C.  J.,     giving  reports  of  trials,  often  say,  '  the 

108 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  108. 

definition  of  "  insanity"  is  for  the  court  or  for  the  jury,    Theory 
and  was  mooted  in  1870  and  1871  in  two  able  judgments    sanity  is  a 


defence  was,  as  usual,  insanity,'  or 
make  use  of  some  other  expression, 
indicating  that  this  species  of  defence 
is  resorted  to,  in  desperation,  for  the 
purpose  of  aiding  in  the  escape  of  crimi- 
nals. Such  opinions  are  propagated, 
in  many  instances,  by  those  whose  feel- 
ings are  too  much  enlisted,  or  whose 
ignorance  respecting  the  subject  is  too 
great,  to  permit  them  to  form  a  dispas- 
sionate and  intelligent  judgment ;  and 
they  have  a  very  pernicious  tendency, 
inasmuch  as  they  excite  the  public 
mind,  and  the  unfortunate  individual 
who  is  really  entitled  to  the  benefit  of 
such  defence  is  thereby  sometimes  de- 
prived of  a  fair  trial.  They  tend  to 
make  the  defence  of  insanity  odious,  to 
create  an  impression  against  its  truth 
in  the  outset,  and  thus  to  bias  the  mind 
of  the  jury  against  the  prisoner,  and 
to  induce  them  to  give  little  heed  to 
the  evidence,  in  the  very  cases  where 
the  greatest  care  and  attention  and 
impartiality  are  necessary  for  the  de- 
velopment of  truth  and  the  attainment 
of  justice. 

"  We  all  concur  in  the  doctrine  of 
the  law,  that,  for  acts  committed  dur- 
ing a  period  of  insanity,  and  induced 
by  it,  the  party  is  not  responsible  ;  that, 
when  the  criminal  mind  is  wanting — 
when,  instead  of  being  guided  by  the 
reason  which  God  bestowed,  the  indi- 
vidual is  excited  and  led  on  by  insane 
fury  and  impulse,  or  by  the  aberrations 
of  a  wandering  intellect,  or  a  morbid 
and  diseased  imagination,  or  a  false 
and  distorted  vision  and  perception  of 
things — punishment  should  not  follow 
the  act  as  for  an  offence  committed  ; 
that,  when  the  faculty  of  distinguish- 
ing between  right  and  wrong  is  want- 
ing, the  individual  ought  not  to  be 
held  as  a  moral  and  accountable  agent. 


As  well,  nay,  much  better,  might  we, 
as  was  formerly  done  in  France,  insti- 
tute prosecutions  against  the  brute 
creation  for  offences  committed  by  them, 
and  hang  a  beast  for  homicide,  than  to 
prosecute  and  condemn  a  human  being 
who  is  deprived  of  his  reason  ;  for  in 
such  case  there  is  no  hope  or  restora- 
tion to  a  right  mind,  and  a  reinstating 
of  a  fellow-citizen,  who  has  been  once 
lost  to  the  community,  in  the  rights 
and  affections  of  humanity.  But  if  we 
imbibe  the  idea  that  instances  of  in- 
sanity are  very  rare — that  derange- 
ment exists  only  when  it  manifests 
itself  by  incoherent  language  and  un- 
restrained fury  —  that  the  defence, 
when  offered,  is  probably  the  last  re- 
sort of  an  untiring  advocate,  who,  con- 
vinced that  no  real  defence  can  avail, 
will  not  hesitate  to  palm  off  a  pretended 
derangement  to  procure  the  escape  of 
his  client  from  merited  punishment — 
if  in  this  way  we  steel  our  hearts  against 
all  conviction,  it  is  of  little  avail  that 
we  agree  to  the  abstract  proposition, 
that  insanity  does  in  fact  furnish  a 
sufficient  defence  against  an  accusation 
for  crime. 

"There  are  undoubtedly  instances 
where  this  defence  is  attempted  from 
the  mere  conviction  that  nothing  else 
will  avail — cases  where  the  advocate 
forgets  the  high  duty  to  which  he  is 
called,  and  excites  a  pi-ejudice  against 
the  case  of  others,  by  attempting  to 
procure  the  escape  of  a  criminal  under 
this  pretence  ;  but  such  are  truly  rare, 
and  usually  unsuccessful." 

"Lawyers  and  physicians,"  says 
Mr,  Stephen,  in  his  treatise  on  Criminal 
Law  (London,  1863,  p.  87),  "mean 
two  different  things  by  the  word  '  mad- 
ness.' A  lawyer  means  conduct  of  a  cer- 
tain character.     A  physician   means    a 

109 


§  108.]       MENTAL    UNSOUNDNESS    IN   ITS    LEGAL   RELATIONS.     . 

question  of  the  Supreme  court  of  New  Hampshire.  In  the  first  of 
of  fact.  these  cases,^  the  defence  was  "dipsomania;"  and  the 
court  trying  the  case  (Perley,  C.  J.,  and  Doe,  J.)  in- 
structed the  jury  that,  "  whether  there  was  such  a  mental  disease 
as  dipsomania,  and  whether  the  killing  of  Brown  (the  deceased) 
was  the  product  of  such  disease,  were  questions  of  fact  for  the 
jury."^  In  a  subsequent  trial  for  murder  in  killing  the  defendant's 
wife,  where  the  defence  was  an  insane  delusion  that  the  wife  had 
been  guilty  of  adultery,  the  court  (Doe,  J.)  charged  the  jury  that, 
if  the  defendant  killed  his  wife  in  a  manner  that  would  be  criminal 
and  unlawful  if  the  defendant  were  sane,  "  the  verdict  should  be 
not  guilty  by  reason  of  insanity,  if  the  killing  was  the  offspring  or 
product  of  mental  disease  in  the  defendant.  Neither  delusion  nor 
knowledge  of  right  and  wrong,  nor  design  or  cunning  in  planning 
and  executing  the  killing  and  escaping  or  avoiding  detection,  nor 
ability  to  recognize  acquaintances,  or  to  labor,  or  transact  business, 
or  manage  affairs,  is  as  matter  of  law  a  test  of  mental  disease  ;  but 
all  symptoms  and  all  tests  of  mental  disease  are  purely  matters  of 
fact  to  be  determined  by  the  jury. 

"  Whether  the  defendant  had  a  mental  disease,  and  whether  the 
hilling  of  his  wife  was  the  product  of  such  disease,  are  questions  of 
fact  for  the  jury y  '-^Insanity  is  mental  disease — a  disease  of  the 
mind.     An  act  produced  hy  mental  disease  is  not  crime.     If  the 

certain  disease,  one   of  the  effects   of  be  proof  of  insane  conduct,  no  amount 

wliich  is  to  produce  sucli  conduct.     If  of  cerebral  disorder  or  hereditary  in- 

the  pathological  character  of  madness  sane   antecedents  has   been   held,  by 

could  be  accurately   ascertained,   the  intelligent  medical   experts,   to   raise 

difference   would    be    perfectly   clear,  even  the  presumption  of  insanity.     See 

Suppose,  for  example,  it  were  shown  articles   in  Am.  Journ.  Ins.  for  1872, 

to  consist  in  obscure   inflammation  of  p.  70;  ibid.,  vol.  31,  p.  30  ;  and  by  Dr. 

the  brain.    It  would  obviously  be  mon-  Gray,  in  Trans.  Med.  Soc.  N.  Y.,  1871. 

strous  to  set  aside  a  perfectly  reasona-  See  also   article   by   Dr.   Ray  in  Am. 

ble  will,  made  with  every  circumstance  Journ.  Med.  Sciences,  N.  S.  vol.  65,  p. 

of  deliberation  and  reflection,  because,  460,  and  one  in  18  Journ.  Ment.  Sci. 

after  the  testator's  death,  it  was  proved,  311.    And  see  "  The  Scientific  Value  of 

by  dissection,  that,  at  the  time  of  exe-  the  Legal  Tests  of  Insanity,"  by  J.  R. 

cuting  the  will,  he  had  obscure  inflam-  Reynolds,  M.D.,  Lond.  1872. 

mation  of  the  brain  ;  yet  this  would  be  '  State  v.  Pike,  49  N.  H.  399. 

demonstrative  proof  that  in  the  medi-  *  See   this  case  examined  at  large, 

cal  sense  of  the  word  he  was  mad."  infra,  §§  1^0,  191. 
But  would  it  ?    Certainly,  unless  there 

110 


INSANITY    AS   A   DEFENCE   TO    CHARGE    OF    CHIME.       [§  110. 

defendant  had  a  mental  disease  which  irresistibly  impelled  him  to 
kill  his  wife — if  the  killing  was  the  product  of  mental  disease  in  him 
— he  is  not  guilty.  If  the  defendant  had  an  insane  impulse  to  kill 
his  wife,  and  could  have  successfully  resisted  it,  he  was  responsible. 
Whether  every  insane  impulse  is  always  irresistible,  is  a  question 
of  fact. 

"  Whether  in  this  case  the  defendant  had  an  insane  impulse  to 
kill  his  wife,  and  whether  he  could  resist  it,  are  questions  of  fact. 
Whether  an  act  may  be  produced  by  partial  insanity  when  no  con- 
nection can  be  discovered  between  the  act  and  the  disease,  is  a  ques- 
tion of  fact.  The  defendant  is  to  be  acquitted  on  the  ground  of 
insanity,  unless  the  jury  are  satisfied  beyond  a  reasonable  doubt 
that  the  killing  was  not  produced  by  mental  disease."  It  was  held 
by  the  supreme  court  in  error  that  these  instructions  were  correct.^ 

§  109.  If  the  rule  be  that  "mental  disease"  is  exclusively  a  ques- 
tion of  fact  for  a  jury,  and  if  it  be  also  exclusively  a  ques-   obiections 

tion  of  fact  for  the  iury  to  determine  Avhether  the  act  com-   to  this 

.  view. 

plained  of  was  the  product  of  mental  disease,  then  any 

further  examination  of  the  question  as  a  matter  of  law  is  unneces- 
sary. All  that  is  required  is  to  use  the  words  in  question  in  a  charge 
to  the  jury,  and  the  matter,  so  far  as  concerns  the  court,  is  closed. 
It  is  now  submitted,  however,  that,  able  and  learned  as  are  the 
judges  who  have  maintained  this  view,  it  cannot  be  sustained  on 
reasons  either  psychological  or  judicial.  That  it  cannot  be  sustained 
on  authority,  these  learned  judges  themselves  concede. 

§  110.  The  proposition  before  us,  then,  is,  that  the  entire  ques- 
tion of  responsibility  is  to  be  left  to  the  jury,  with  the 
instruction  that  if  the  act  was  the  product  of  "mental    "mental 
disease"  they  are  to  acquit.     But  what  is  "mental  dis-   fnciu^eg 
ease?"     And  here  we  encounter  the  first  obstacle  to  this   every  phase 

01  passion. 

method  of  solving  this  vexed  and  yet  most  important  ques- 
tion. "Mental  disease,"  in  fact,  is  a  term  so  indeterminate  and 
vague,  that  to  leave  the  question  to  the  jury  with  the  instructions 
here  criticized,  is  to  leave  it  to  them  without  any  instructions  at  all. 
Mental,  like  physical  disease,  ranges  from  slight  indisposition  or 
disorder,  on  the  one  side,  to  the  comatose  state  immediately  pre- 

'  See  Stevens  v.  State,  31  Ind.  485  ;  and  article  in  4  Am.  Law  Review,  530 ; 
Bee  infra,  §  191,  note  z. 

Ill 


§  110.]        MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

ceding  dissolution,  on  the  other.  There  is  no  phase  of  ennui  or  of 
misanthropy,  no  tinge  of  jealousy  or  avarice,  however  faint;  no  cor- 
rosion of  remorse,  however  just,  that  has  not  received  this  title. 
States  of  mind  eminently  responsible — those  which  the  most  latitu- 
dinarian  ethics  would  pronounce  as  peculiarly  the  subjects  for  the 
discipline  and  penalties  of  the  law — have,  as  was  the  case  with  Lady 
Macbeth,  been  invested  with  the  title  as  readily  as  those  where  re- 
sponsibility is  confessedly  gone.^  Webster,  in  his  Dictionary,  tells 
us  that  "in  a  figurative  sense  we  speak  of  a  diseased  mind,"  and 
he,  as  well  as  Worcester  and  Richardson,  defines  mental  disease  as, 
first,  want  of  ease,  and,  secondly,  a  morbid  or  unhealthy  condition, 
a  definition  which  would  include  every  mental  state  which  makes 
crime  the  object  of  desire.  "In  the  world  ye  shall  have  disease  f 
so  runs  Wicklifi'e's  translation  of  John,  xvi.  33 ;  and  want  of  rest 
and  disquiet  give  still  the  primary  meaning  of  the  word,  however 
much,  in  our  modern  complimentary  way  of  toning  down  by  inade- 
quate epithets  subjects  distasteful  to  us,  it  may  have  been  meta- 
phorically extended  to  denote  active  maladies.  Yet,  even  when 
thus  metaphorically  enlarged,  the  term  includes  passion  in  every 
phase.  Thus,  in  the  second  epistle  of  his  Essay  on  Man,  Pope 
says: — 

"Hence  different  passions  more  or  less  inflame, 
As  strong  or  weak,  tlie  organs  of  the  frame : 
And  hence  one  master-passion  in  the  breast, 
Like  Aaron's  serpent,  swallows  up  the  rest. 
As  man,  perhaps,  the  moment  of  his  breath, 
Receives  the  lurking  principle  of  death  : 
The  young  disease,  which  must  subdue  at  length, 
Grows  with  his  growth,  and  strengthens  with  his  strength  ; 
So,  cast  and  mingled  with  his  very  frame. 
The  mind's  disease,  its  ruling  passion  came,"  etc. 

'  It  is  remarkable  how  pointedly  the  Pluck  from  the  memory  a  rooted  sorrow, 

passage  from  which  the  term  ' '  mind  Raze  out  the  written  troubles  of  the 

diseased"  has  crept  into  common  use,  brain, 

brings  out  the  idea  of  moral  responsi-  ^^^  ^^'^^^  s°™®  ^""^^^  oblivious  antidote, 

bility  as  distinguished  from  irresponsi-        ^^^^''^''  *^^  ^^""^^^  ^""^""^  ^^  ^^'"-^  P^"-" 

ilous  stuff 


bility  ;  and  how  thoroughly  inconsist- 
ent is  the  state  it  depicts  with  irrespon- 
sible insanity  : — 
Macbeth. 

Canst  thou  not  minister  to  a  mind  dis- 
eased, 

112 


Which  weighs  upon  the  heart  ? 
Doctor. 

Therein  the  patient  must  minister   to 
himself. 


INSANITY    AS    A    DEFENCE    TO    CHAP.GE    OF    CRIME.       [§  111. 

§  111.  Now,  if  we  substitute  for  "mental  disease"  in  the  formula 
given  in  New  Hampshire,  any  one  of  the  definitions  just  ^n^is  am- 
noticed,  we  will  at  once  see  how  inadequate  is  this  mode  biguous. 
of  disposing  of  the  question.  No  one  would  maintain,  for  instance, 
that  it  would  not  be  in  violation  of  all  the  fundamental  sanctions  of 
criminal  jurisprudence  to  tell  the  jury  that  they  must  acquit  the  de- 
fendant if  they  believe  the  act  was  produced  by  a  "  mind  ill  at 
ease,"  or  by  a  "morbid  or  unhealthy  condition  of  the  mind,"  or  by 
the  mind's  "  ruling  passion."  Yet  the  term  "mental  disease"  le- 
gitimately and  primarily  includes  all  these  states,  and  may  be  pro- 
perly used  to  describe  every  evil  passion  by  which  crime  may  be 
caused.  In  fact,  if  criminal  desire  be,  as  is  argued  by  eminent 
physicists,  always  a  mental  disease,  then  the  instructions  under 
controversy  are  equivalent  to  telling  the  jury  that  they  must  acquit 
in  all  cases  where  the  crime  was  the  product  of  criminal  desire. 
Under  such  a  system,  only  the  innocent  could  be  convicted  of  crime, 
for  only  the  innocent  could  be  pronounced  free  from  this  psychical 
peculiarity. 

How  ambiguous  the  term  is,  appears,  in  fact,  from  one  of  the  very 
rulings  to  which  we  here  except.  It  was  declared,  in  the  first  of 
the  cases  commented  on,^  that  dipsomania  was  one  of  the  defences 
of  which  the  jury  were  to  be  thus  the  supreme  judges.  The  argu- 
ment may  be  thus  technically  stated :  All  forms  of  mental  disease 
are,  both  as  to  their  existence  and  their  results,  for  the  determina- 
tion of  the  jury ;  dipsomania  is  a  form  of  mental  disease  ;  therefore 
dipsomania,  both  as  to  its  existence  and  results,  is  for  the  exclusive 
determination  of  the  jury.  But  those  who  have  introduced  the  term 
"dipsomania,"  and  who  are  the  sole  authorities  who  recognize  it  as 
a  distinct  disease,  declare  that  it  is  not  a  "mental"  disease  at  all; 
that  it  is  exclusively  a  moral  disease ;  and  that  it  may  coexist  with 
a  mind  undiseaaed  and  sane.  In  order,  therefore,  to  sustain  the 
conclusions  of  the  court,  we  are  obliged  to  make  "mental"  include 
"moral,"  and  thus  expand  the  instructions  to  include  moral  disease, 
or  morbid  condition  of  morals,  as  well  as  morbid  condition  of  mind. 
The  court,  therefore,  while  nominally  declining  to  define  insanity, 
virtually  defines  it  summarily,  by  making  mental  disease  include 
moral  disorder. 


'  State  V.  Pike,  ut  supra. 

VOL.  I.— 8  113 


§  114.]       MENTAL   UNSOUNDNESS   IN   ITS    LEGAL    RELATIONS. 

§  112.    But  it  is  ably  argued  by  Judge  Doe,  in  the  case  just  re- 
ferred to,  that  this  is  a  question  to  be  determined  by  ex- 
o/insanity    perts  who  alone  can  define  scientifically  what  insanity  is. 
must  come    rj^j^jg  position  is  hereafter  fully  discussed,  when  this  par- 

troin  court,  ^  •'       _  _        _  -^     _ 

not  ex-  ticular  point  comes  up  for  special  examination.^  It  is 
sufficient  at  this  point  to  state  (1)  that  the  question  in 
criminal  issues  is  not  insanity  but  irresponsibility,  which  it  is  emi- 
nently important  should  be  limited  by  positive  definition  by  the 
highest  judicial  authority  the  state  can  constitute ;  and  (2)  that 
experts  do  not  form  such  an  authority,  (a)  because  their  sense,  as 
a  body,  cannot  be  obtained  by  any  process  known  to  our  courts,  (b) 
because  there  is  no  independent  court  of  experts,  which  on  notice 
to  both  sides,  and  after  argument,  if  necessary,  can,  when  the  ex- 
perts called  in  a  particular  case  conflict,  give  a  judicial  opinion 
upon  the  issue;  and  (c)  because,  in  many  cases  of  criminal  defence, 
only  those  eccentric  and  exceptional  experts  are  selected  who  believe 
in  some  Avild  theory  which  may  help  out  the  defendant's  case.^ 
§  113.  Rejecting,  therefore,  as  impracticable  and  unphilosophical, 
the  su^sestion  to  devolve  on  experts  the  determination  of 

Jury  not  '=>°  _  -^  _ 

qualified  what  "  mental  disease"  is,  and  what  are  its  results,  we 
question  of  fall  back  upon  the  question  in  its  original,  and  what,  in- 
^'''''  deed,  must  in  this  view  be  its  final,  state,  and  ask  whether 

a  jur^  is  a  body  fit  to  lay  down  settled  rules  on  this  momentous 
subject.  And  in  answering  this,  we  must  remember  what  the  issue 
really  is.  It  is  simply  "  responsible"  or  "  irresponsible,"  an  issue 
of  all  others  the  most  vital,  both  to  the  party  himself,  whose  civil 
existence  depends  on  the  result,  and  to  the  community,  which  is  thus 
to  be  advised  whether  it  is  to  cage  him  as  a  dangerous  lunatic,  or  to 
permit  him  to  receive  at  once  the  discipline  and  the  immunities  which 
belong  to  a  free  citizen  of  a  free  state.  Is  it  fit  to  intrust  this  ques- 
tion to  the  decision  of  a  jury  with  instructions  so  vague  as  those 
which  are  given  above  ?  Is  a  jury  competent,  when  the  matter  is 
so  left  to  it,  to  establish  definite  rules  which  will  place  the  doctrine 
of  responsibility  on  grounds  which  are  just  and  safe  ? 

§  114.  We  submit  they  are  not,  for  the  following  reasons :  (1) 
They  do  not  form  a  continuous  body,  prepared  for  their  ofiice,  as 
are  our  courts  of  justice,  by  prior  study.     (2)  The  reasons  of  their 

'  Infra,  §§  194-200.  "  See  also  infra,  §§  194-200. 

114 


INSANITY    AS   A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  115. 

decisions  are  not  given,  so  that  these  decisions  can  form  the  basis  of 
future  decisions.  Each  decision  stands  by  itself,  not  controlled  by 
those  which  preceded  it,  and  not  controlling  those  which  succeed. 
(3)  There  is  no  "  supreme"  jury,  by  whom  the  decisions  of  "  infe- 
rior" juries  can  be  corrected  and  symmetrized.  Plence,  instead  of 
obtaining  in  this  way  a  definite  and  consistent  body  of  law,  which, 
whatever  may  be  its  merits,  will  at  least  be  a  rule  of  action,  we  will 
have  a  series  of  disjointed  and  conflicting  edicts,  from  which  no  rule  of 
action  can  be  deduced.  Yet,  after  all,  it  is  system,  uniformity,  and 
consistency  that  penal  law,  in  this  respect,  eminently  needs.  We 
may  illustrate  this  by  recurring  again  to  the  doctrine  of  moral  in- 
sanity. If  the  existence  of  this  disease,  as  conferring  irresponsi- 
bility, be  maintained,  then  the  community  will  protect  itself  by  put- 
ting persons  "  morally  insane"  under  permanent  restraint.  If  the 
doctrine  be  denied,  then  such  persons  will,  like  all  others,  be  subject 
to  penal  discipline  when  they  do  wrong,  and,  if  they  persist  in  doing 
wrong,  then  their  lives  will  be  spent  in  prison.  What  is  necessary, 
therefore,  is  not  so  much  that  this  doctrine  should  be  decided  in 
any  particular  way,  but  that  there  should  be  some  decision,  and  that 
this  decision  should  be  expressly  and  positively  announced  and  be 
made  a  precedent  for  future  cases.  But  this  is  what  a  jury  cannot 
do.  In  deciding  the  question  whether  "  moral  insanity"  is  a  defence, 
no  jury,  if  unguided  by  instructions  of  the  court,  will  follow  the 
precedents  of  former  cases,  or  establish  a  precedent  by  which  future 
cases  can  be  ruled.  The  whole  law,  in  this  respect,  will  become  a 
blank ;  and  the  doctrine  of  responsibility  thrown  into  a  chaos  in 
which  it  will  be  impossible  to  determine  who  is  responsible  or  irre- 
sponsible, sane  or  insane. 

§  115.  The  definition  of  penal  responsibility,  therefore,  is  a  high 
prerogative  which  judges,  educated  for  the  office  as  they 
are,  and  appointed  by  the  state  as  the  guardians  at  once    ^"refo*^" 
of  the  sovereignty  of  the  law  and  the  liberty  of  the  citi-    rests  with 

.    .  .  judges. 

zen,  cannot  surrender  or  divide.^     The  state  has  the  right 
to  call  on  them  to  establish  a  consistent  system  which  the  commu- 
nity may  take  for  its  guidance.     Every  man  may  be  exposed  to 
danger  from  others,  and  therefore  every  man  has  a  right  to  know 
whether  he  must  protect  himself  beforehand  by  appealing  for  a  com- 

J  R.  V.  Richards,  1  F.  &  F.  87  :  see  infra,  §§  190-200. 

116 


§  116.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL   RELATIONS. 

mission  of  lunacy  against  his  assailant,  or  must  rely  for  redress  on 
the  ordinary  common  law  process  of  indictment.  Every  man  is  liable 
to  be  seized  at  any  moment  by  such  commission  of  lunacy,  and  we  have 
a  right  in  this  view  to  demand  that  there  should  be  a  definite  line 
of  responsible  judicial  decisions  to  determine  under  what  circum- 
stances we  are  to  be  deprived  of  liberty  and  estate.  Even  persons 
charged  with  crime  have  a  right  to  be  supplied  with  accurate  infor- 
mation of  the  law  by  which  their  defence  can  be  shaped.  And, 
above  all,  society  at  large  has  a  right  to  expect  that  the  law  which 
regulates  the  relations  of  reason  to  crime^  should  be  mapped  out 
with  precision  by  learned  jurists,  dedicated  by  solemn  sanctions  to 
continuous  judicial  service,  whose  decisions  on  trial  can  be  reviewed 
on  appeal,  and  who,  if  incapable  or  corrupt,  can  be  removed.  Nor 
is  the  task  one  inconsistent  with  the  judicial  office.  The  determina- 
tion of  such  questions  no  doubt  belongs  to  the  highest  philosophical 
jurisprudence,  but  it  is  one  which  even  the  homeliest  practical  juris- 
prudence cannot  avoid  without  serious  injury  to  the  state. ^ 

II.    SPECIAL  EXCEPTIONS. 

§  116.  There  is,  however,  a  second  preliminary  difficulty  that 
remains  to  be  noticed  before  proceeding  to  an  examina- 
tion of  tion  of  the  great  question  of  criminal  responsibility.    The 
exceptions,    g^.^^  ^^^  ^^^^  1^^^^^  disposed  of.     The  second,  which  is 

coeval  with  the  existence  of  this  branch  of  the  law,  arises  from  the 
opposite  extreme,  namely,  from  the  desire  to  force  into  an  inflexible 
and  positive  judicial  code,  special  opinions  delivered  by  judges  when 
particular  facts  requiring  such  opinions  were  under  examination. 

Thus,  for  instance,  when  a  defendant,  in  whom  there  is  no  pre- 
tence of  mania  or  homicidal  insanity,  claims  to  be  exempt  from 
punishment  on  the  ground  of  incapacity  to  distinguish  right  from 
wrong,  the  court  very  properly  tells  the  jury  that  the  question  for 
them  to  determine  is,  whether  or  no  he  labors  under  such  particular 
incapacity.  The  error  has  been  to  seize  such  an  expression  as  this 
as  an  arbitrary  elementary  dogma,  and  to  insist  on  its  application 
to  all  other  cases.  Or,  take  the  converse,  and  suppose  the  defence 
is  merely  homicidal  insanity.  In  such  a  case  it  would  be  very 
proper  to  tell  the  jury  that,  unless  they  believe  the  homicidal  ira- 

1  See  infra,  §§  183-188.  2  See  §§  185-189. 

116 


INSANITY   AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  116. 

pulse  to  have  been  uncontrollable,  they  must  convict.  And  yet 
nothing  would  be  more  unjust  than  to  make  this  proposition,  true  in 
itself,  a  general  rule  to  bear  on  such  cases  as  idiocy.  It  is  pro- 
posed to  avoid  this  difficulty  by  treating  this  question  practically, 
in  the  only  way  in  which  it  can  arise  in  courts,  and  to  consider 
briefly,  not  what  is  the  general  limit  of  moral  responsibility  in  the 
abstract,  but  in  what  cases  such  responsibility  ceases  to  exist.^ 
These  will  now  be  discussed. 


1  The  difficulty  in  this  respect  has 
heen  increased  by  the  looseness  with 
which  legal  adjudications  are  cited  by 
even  some  of  the  more  eminent  text- 
writers.  In  fact,  while  the  exigencies 
of  counsel  and  the  duty  of  judges  re- 
quire a  constant  recourse  to  the  text- 
books on  this  particular  science,  in 
making  up  such  text-books  the  autho- 
rized law  reports  have  not  been  suffi- 
ciently relied  upon. 

Of  the  mistakes  arising  from  loose- 
ness of  citation  in  this  respect,  we  may 
take  as  an  illustration  Wood's  case, 
which  is  invoked  by  Dr.  Winslow,  in 
his  Lectures  on  Insanity  (p.  102),  to 
show  that  in  America  "a  verdict  of 
lunacy"  will  be  recorded  under  cir- 
cumstances which  really  show  nothing 
more  than  vehement  passion  and  mor- 
bid excitement.  In  that  case,  which 
occurred  in  Philadelphia  in  1838,  a 
father  shot  his  daughter  in  a  paroxysm 
of  rage,  caused  by  her  improvident 
marriage.  The  prosecution  was  aban- 
doned by  the  attorney-general,  under 
circumstances  which  were  not  at  all 
connected  with  the  defendant's  sanity 
or  insanity ;  and  a  verdict  of  acquittal 
was  rendered,  not  of  lunacy,  in  the 
teeth  of  a  charge  from  the  very  able  and 
humane  judge  (.Judge  King)  who  tried 
the  case,  that  the  defence  of  insanity 
had  not  been  in  any  degree  substan- 
tiated. The  verdict  is  no  authority 
whatever.  It  was  produced  by  circum- 
stances very  derogatory  to  public  jus- 
tice, it  was   received   with   unbroken 


disapprobation  by  the  entire  commu- 
nity, and  it  was  in  direct  opposition  to 
the  charge  of  the  court,  instead  of  being 
responsive  to  it.  Had  the  official  re- 
port of  the  case  been  resorted  to,  the 
last  fact,  at  least,  would  have  been 
discovered. 

Newspaper  and  other  unofficial  re- 
ports, in  fact,  however  interesting,  are 
of  no  legal  authority,  and  they  should 
be  to  a  peculiar  degree  received  with 
the  qualifications  which  should  be  at- 
tached to  cases  decided  at  nisi  prius. 
What  a  judge  tells  a  jury  is  meant  for 
a  particular  issue.  If  the  evidence 
should  show  an  old  grudge,  his  duty 
would  undoubtedly  be  to  say  to  the 
jury  that  drunkenness  must  be  left 
entirely  out  of  consideration.  If  the 
defendant  and  the  deceased  were  mere 
strangers,  and  the  defendant  in  sudden 
passion,  from  what,  to  a  man  in  his 
state  of  mind,  would  be  adequate  pro- 
vocation, killed  the  deceased,  it  would 
be  proper  to  tell  the  jury  that  drunken- 
ness in  this  case  would  lower  the  of- 
fence to  manslaughter.  It  is  plain, 
however,  that  expressions  directed  to  a 
particular  state  of  facts,  cannot  pro- 
perly be  severed  from  the  context,  and 
propounded  as  absolute  independent 
principles  applicable  to  all  cases  what- 
ever., It  is  only  by  carefully  marshal- 
ling the  facts  that  we  learn  what  the 
opinion  of  the  judge  trying  the  case 
really  was,  and  even  then,  the  position 
of  the  court,  the  opportunities  it  has 
possessed  for  revision  and  a  consulta- 

117 


§  117.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

1.    Whe7'e  the  defendant  is  incapable  of  distinguishing  right  from 
ivrong  in  reference  to  the  particular  act. 

§  117.  Under  this  head  may  be  enumerated  persons  afflicted  with 
idiocy  or  with  general  mania.  It  is  certain  that  wherever 
maniacs  such  incapacity  is  shown  to  exist,  the  court  will  direct 
mesponsi-  ^^  acquittal ;  or  if  a  jury  should  convict  in  the  teeth  of 
such  instructions,  the  court  will  set  the  verdict  aside. 
The  authorities  to  this  effect  are  so  numerous,  that  a  general  refer- 
ence to  them  is  all  that  is  here  necessary  ;  it  being  observed  at  the 
same  time,  that  while  the  earlier  cases  lean  to  the  position  that  such 
depravation  of  understanding  must  be  general,  it  is  now  conceded 
that  it  is  enough,  if  it  is  shown  to  have  existed  in  reference  to  the 
particular  act.^ 

The  English  law  in  this  relation  took  definite  and  final  shape  in 
the  answer  of  the  fifteen  judges  to  the  question  propounded  to  them 
by  the  house  of  lords  in  June,  1843.  "The  jury,"  they  said, 
"ought  to  be  told  in  all  cases  that  every  man  is  presumed  to  be 
sane,  and  to  possess  a  sufficient  degree  of  reason  to  be  responsible 
for  his  crimes,  until  the  contrary  be  proved  to  their  satisfaction ; 
and  that  to  establish  a  defence  on  the  ground  of  insanity,  it  must  be 
clearly  proved  that  at  the  time  of  committing  the  act,  the  party  ac- 
cused was  laboring  under  such  a  defect  of  reason,  from  disease  of 
the  mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was 


tion  of  authorities  after  argument,  and 
the  authenticity  and  accuracy  of  the 
report,  enter  largely  into  the  question 
how  far  the  opinion  so  expressed  is  of 
weight.  For  convictions  in  cases  of 
alleged  insanity,  see  32  Am.  Journ, 
Ins.  405  ;  34  ibid.  368 ;  26  Journ.  Ment. 
Sci.  247. 

J  See  Wh.  Cr.  L.  8th  ed,  §§  34  et  seg., 
where  the  later  authorities  are  given  ; 
1  Inst.  247  ;  Bac.  Abr.  Idiot ;  Co.  Litt. 
247  a ;  1  Russ.  on  Cr.  by  Greaves, 
13 ;  1  Hawk.  cl.  s,  3  ;  4  Bla.  Com.  24 ; 
Collinson  on  Lunacy,  573,  673,  (n)  ;  R. 
V.  Oxford,  9  C.  &  P.  525;  Burrow's 
case,  1  Lewin,  238  ;  R.  v.  Goode,  7  A. 
&  E.  536  ;  67  Hans.  Par.  Deb.  728 ; 
Bowler's   case,    Hadfield's   case,    ibid. 

118 


480  ;  1  Russ.  II  ;  27  How.  St.  Tr.  1316  ; 
Com.  r.  Rogers,  7  Mete.  500  ;  7  Bost.  L. 
R.  449  ;  Com.  v.  Hosier,  4  Penn.  St. 
264 ;  Freeman  v.  People,  4  Denio,  9  ; 
State  V.  Spencer,  21  N.  J.  L.  196 ;  State 
V.  Gardiner,  Wright,  Oh.  392 ;  Com.  i-. 
Parkin,  3  Penn.  L.  J.  482  ;  Vance  v. 
Com.  2  Virg.  C.  132  ;  McAllister  v.  State, 
17  Ala.  434 ;  U.  S.  v.  Sliultz,  6  McLean, 
120  ;  People  v.  Sprague,  2  Parker,  C.  R. 
43  ;  State  v.  Huting,  21  Mo.  464  ;  R.  v. 
Barton,  3  Cos,  C.  C.  275  ;  R.  v.  Oflford,  5 
C.  &  P.  168  ;  R.  V.  Higginson,  1  C.  &  K. 
129  ;  R.  V.  Stokes,  3  C.  &  K.  188  ;  R.  r. 
Layton,  4  Cox,  C.  C.  149  ;  R.  i;.Vaughan, 
I  Cox,  C.  C.  80  ;  People  v.  CofiFman,  24 
Cal.  230  ;  Com.  v.  Heath,  11  Gray,  303  ; 
State  V.  Lawrance,  57  Me.  574. 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIxME.       [§  119. 

doing,  or  if  he  did  know  it,  that  he  did  not  know  he  was  doing 
what  was  wrong."^ 

§  118.  Severe,  however,  as  the  rule  is,  viewing  it  as  an  abstract 
proposition,  the  English  judges  have  not  been  unindulgent 
when  determining  as  to   the   amount  of  evidence  from    laxltion  of 
which  ignorance  as  to  right  and  wrong  may  be  inferred,    other  cases 
Thus,  a  married  woman  having  killed  her  husband  imme- 
diately after  an  apparent  recovery  from  a  disease  (the  result  of 
childbirth),  which  caused  a  great  loss  of  blood,  and  exhausted  the 
vessels  of  the  brain,  and  thus  weakened  its  power,  and  tended  to 
produce  insane  delusions  of  the  senses,  which,  while  suffering  un- 
der such  disease,  she  complained  of,  and  which,  by  her  own  account, 
had  been  renewed  at  the  time  of  the  act  of  homicide  (although  they 
■were  not  such  as  would  lead  to  it):  these  facts  were  held  by  Erie, 
J.,  to  be  evidence  from  which  a  jury  might  properly  find  that  she 
was  not  in  such  a  state  of  mind  at  the  time  of  the  act  as  to  know  its 
nature  or  be  accountable  for  it.^ 

So,  also,  where  a  married  woman,  fondly  attached  to  her  children, 
and  apparently  most  happy  in  her  family,  had  poisoned  two  of  them 
with  some  evidence  of  deliberation  and  design  ;  but  it  appeared  that 
there  was  insanity  in  her  family  ;  and  from  her  demeanor  before 
and  after  the  act,  which,  although  not  wholly  irrational,  yet  was 
strangely  erratic  and  excited  ;  and  from  recent  antecedents,  and  the 
presence  of  certain  exciting  causes  of  insanity,  and  her  own  account 
of  her  sensations,  the  medical  men  were  of  opinion  that  she  was  la- 
boring under  actual  cerebral  disease,  and  that  she  was  in  a  paroxysm 
of  insanity  at  the  time  of  the  act ;  this  was  left  by  Wightman,  J., 
to  the  jury,  as  evidence  on  which  they  might  rightly  find  her  not 
guilty  on  the  ground  of  insanity  .^ 

§  119.  Is,  however,  the  "  right  and  wrong"  test  to  be  that  by 

which  all  cases  of  penal  insanity  are  to  be  tried  ?     The    Qg^gj-^i 

negative  will  be  presently  argued  ;  and  it  will  be  main-   test  is 

*==  ...  .  knowledge 

tained  that  the  defence  of  insanity  is  also  sustained,  when   of  right 

(1)  there  is  an   insane  delusion  from  which  the  crime    ^°   wrong. 

emanates,  and  (2)  when,  being  at  the  time  insane,  the  defendant 

is  forced  to  the  act  by  an  irresistible  impulse  ;  though  he  in  each 

J  SeeR.r.McNaghten,  IC.&K.  atp.  '  Wh.  Cr.  L.  8th  ed.  §35;  R.  v. 
134  ;  8  Scott  N.  R.  595.  Vyse,  3  F.  &  F.  247. 

2  R.  V.  Law,  2  F.  &  F.  836. 

119 


§  120.]       MENTAL   UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

case  knows  the  act  is  forbidden  by  the  laws  of  the  land.     But  in 

cases  which  do  not  fall  within    those  exceptions,  the   prevalent ' 

opinion  is  that  if  the  defendant  knew  enough  to  distinguish  right 

from  wrong  as  to  the  particular  case,  the  defence  of  insanity  is  not 

made  out.^ 

§  120.  Whatever  may  be  the  theory  of  responsibility  we  adopt, 

T,.  , .  ,  there  is  much  to  commend  the  "  right  and  wrong"  test  to 
Kignt  and  ^  ° 

wrong  test    our  acceptance.     As  is  shown  in  another  work,^  there 

generally  .  . 

satisfac-        are  three  theories  on  which  punishment  is  based  :  1st,  that 

°^^"  of  retribution  ;  2d,  that  of  prevention  ;  and  3d,  that  of 

example.  Whichever  of  these  views  we  take,  it  seems  proper  to 
make  a  consciousness  of  right  and  wrong  as  to  a  particular  act  a 
condition  of  responsibility  for  that  act.  If  we  take  the  theory  of 
retribution,  we  cannot  in  justice  impose  punishment  where  there  is 
no  guilt.  Punitur  quia  'peccatum  est,  is  the  basis  of  that  theory  ; 
there  must  be  sin  to  sustain  punishment,  and  sin  involves  sense  of 
wrong.  On  the  retributive  theory,  therefore,  we  are  justified  in 
holding  all  persons,  conscious  of  the  wrongfulness  of  a  particular 
act  which  they  commit,  responsible  for  that  act.  And  on  the  pre- 
vention and  example  theories,  the  argument  for  punishment  of  per- 
sons who,  however  disturbed  may  be  their  minds,  are  conscious  of 
the  difference  between  right  and  wrong,  as  to  the  particular  act,  is 
still  stronger.  Penal  law  is  a  general  system,  applicable  to  all 
subjects  of  the  state  imposing  it,  exacting  certain  duties,  and  pro- 
hibiting that  which  law-makers  consider  to  be  wrong.^  The  law 
cannot,  however,  forbid,  without  punishing  in  case  of  disobedience ; 
for  prohibition  without  punishment  ceases  to  be  prohibition.  Now, 
it  is  conceded  by  those  having  charge  of  lunatics,  that  they  are  the 
subjects  of  discipline.  In  fact,  the  police  system  which  prevails  in 
all  lunatic  asylums  assumes  this,  even  should  we  cast  aside  the 
abundant  general  testimony  from  experts  that  lunatics  are,  as  a 
rule,  open  to  the  influence  of  fear  of  punishment.  If  so,  do  they 
differ,  except  in  degree,  from  men  who  are  the  slaves  of  passion,  or 
the  victims  of  demoralizing  education  ?  Mitigation  of  guilt,  indeed, 
and  diminished  responsibility,  may  be  claimed  for  them  on  account 

'  See  cases  supra;  R.  «.  Oxford,  supra,  will  be  found  grouped  in  Wli.  Cr.  L.  8tli 

§  117  ;  An.  Reg.  1840,  pt.  ii.  p.  262  ;  R.  ed.  §§  37  et  seq. 
V.  McNaghten,  ibid.  1843,  pt.  ii.  p.  35  ;         2  Wh.  Cr.  L.  8th  ed.  §§  1  et  seq. 
supra,  §  117  ;  the  American  authorities         '  See  infra,  §§  183-188. 

120 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  122. 

of  their  infirmity  ;  but,  as  penal  law  can  control  their  outbursts,  the 
interests  of  society  require  that  over  them  penal  law  should  con- 
tinue to  assert  its  control. 

§  121.  Yet,  admitting  the  force  of  this,  there  are  preponderating 
reasons  which  lead  us  again  (1881)  to  assert  the  quali-   But  with 
fications  we  expressed  in  former  editions  of  this  work,    exceptions. 
That  the  "  right  and  wrong"  test  does  not  cover  all  the  cases  of 
legitimate  instme  irresponsibility,  will  now  be  shown. 

§  122.  Medical  and  psychological  observation,  based  on  an  induc- 
tion which  each  year  makes  at  once  more  extended  in  its 
materials  and  more  absolute  in  its  results,  tells  us  that   coexisting 
there  are  persons  unquestionably  insane  who  are  capable    ^^^^.  ppwer 
of  being  instructed  in  the  "law  of  the  land,"  of  knowing   guish  be- 
what  this  law  is,  both  in  its  general  character  and  its   and  wrong. 
results,  and  of  being  deterred  by  proper  sanction,  from   ^finiQ^g^^^*^ 
breaking  such  law.^  responsi- 

,  .  ,      bility. 

What  is  to  be  done  with  such  lunatics,  on  the  test  which 
is  above  given  ?  Are  they  to  be  punished,  as  if  they  were  sane, 
if  they  happen  to  violate  a  law  of  which  they  are  aware  ?  This  un- 
doubtedly is  one  of  the  most  profound  and  delicate  questions  which 
penal  jurisprudence  can  approach.  The  North  German  Code  has 
endeavored  to  solve  the  difficulty  by  establishing  in  such  cases 
what  is  called  diminished  responsibility,  followed,  in  cases  of  con- 
viction, by  penalties  graduated  on  a  milder  scale  than  those  which 
are  visited  on  the  entirely  sane.  And,  assuming,  as  is  really  the 
case,  that  there  are  grades  of  insanity  just  as  there  are  grades 
of  sanity,  and  that  the  two  melt  together  at  their  juncture  almost 
imperceptibly  as  do  day  and  night  in  twilight,^  it  is  philosophically 
just,  that  in  the  lower  grades  of  sanity,  and  in  the  more  "  rational" 
and  responsible  grades  of  insanity,  such  a  rule  should  be  imposed. 
If  it  be  not,  either  society  will  be  exposed  to  the  unnecessary  peril 
of  having  its  order  disturbed  by  the  inroads  of  a  class  of  men  who 
are  not  insane  enough  to  be  constantly  confined,  but  are  too  insane 
to  be  punished,  or  the  great  cruelty  would  be  inflicted  on  this  very 
class,  whom  a  just  and  humane  penal  system  could  restrain,  of  shut- 

«  See  infra,  §§  378,    389,  410.     The         «  See  supra,  §  50. 
recent  authorities  will  be  found  in  Wh. 
Cr.  L.  8th  ed.  §  40  et  seq. 

121 


§  124.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

ting  them  up  for  life  in  asylums.  Our  common  law  reaches  some- 
what the  same  remedy  by  declaring,  as  will  hereafter  be  seen,  that 
there  are  certain  abnormal  states  of  mind,  e.  g.,  drunkenness,  and 
by  the  same  process  of  reasoning,  exaltation  and  excitement  produced 
by  cerebral  disease,  which,  while  they  do  not  destroy  responsibility, 
or  justify  a  jury  in  rendering  a  verdict  of  not  guilty  as  to  the  fact 
of  guilt,  neutralize  the  presumption  of  malice  and  of  premeditated 
intent,  and  lead,  therefore,  to  a  conviction  of  the  offence  charged  in 
its  minor  and  less  aggravated  stages.  Particularly  is  this  the  case 
in  prosecutions  for  homicide,  where,  in  cases  of  mental  turmoil,  ex- 
citement, or  debility,  the  specific  and  deliberate  and  cool  inteat  to 
take  life,  essential,  in  most  American  states,  to  murder  in  the  first 
degree,  is  not  capable  of  proof,  and  in  which,  therefore,  the  verdict 
is  properly  murder  in  the  second  degree,  or  manslaughter.^ 

§  123.  But  there  are  phases  of  insanity  to  which  even  this  attri- 
bute of  "  diminished"  responsibility  cannot  with  any  ius- 
' '  Moral  1  ./  .;  i) 

insanity"  tice  be  applied.  That  the  so-called  "  moral"  insanity 
no  e  ence.  ^^  ^^  ^  supposed  condition  in  which  the  moral  system  is 
insane  but  the  mental  sane)  is  not  one  of  these  phases,  will  be  here- 
after abundantly  shown. ^ 

§  124.  But  it  is  otherwise  with  insanity  accompanied  with  delu- 
sions of  such  a  character  that  the  patient  believes  he  is 
with'^^^^^      authorized  by  superior  authority  to  dispense  with  the  law 
insane  of  the  land,  and  with  insanity  one  of  whose  elements  is 

delusions.  .  ... 

an  impulse  to  commit  crime  which  the  reason  is  unable  to 
resist.  If  there  be  such  phases  of  insanity  as  these,  it  is  clear  that 
their  subjects  are  not  responsible  to  the  ordinary  processes  of  penal 
justice.  Yet  such  patients  the  "right  and  wrong"  test  might  pro- 
nounce sane.  In  such  cases,  therefore,  this  test  cannot  be  exclu- 
sively applied. 

I  See  infra,  §§  151,  200.  2  See  infra,   §§  163,  189,  533,  567. 

122 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  126. 

2.  When  the  defendant  is  acting  under  an  insane  delusion  as  to 
circumstances,  which,  if  true,  would  relieve  the  act  from  respon- 
sibility, or  ivhere  his  reasoning  powers  are  so  depraved  as  to  make 
the  commission  of  the  pai'ticular  act  the  natural  consequence  of 
the  delusion. 

\_For  several  valuable  medico-juridical  opinions  in  cases  of  alleged 
delusions,  see  the  third  edition  of  this  work,  Ajjpendix,  §§  833, 
834,  837,  843.] 

§  125.  The  answer  of  the  English  judges  on  this  point  requires 
special  comment.  The  question  propounded  to  them  in 
this  respect  was,  "  If  a  person,  under  an  insane  delusion  ^eiuslonT*^ 
as  to  existing  facts,  commits  an  offence  in  consequence  ^^7  ^^  * 
thereof,  is  he  thereby  excused?"  "To  which  question," 
they  replied,  "  the  answer  must  of  course  depend  on  the  nature  of 
the  delusion ;  but,  making  the  same  assumption  as  we  did  before, 
namely,  that  he  labors  under  such  partial  delusion  only,  and  is  not 
in  other  respects  insane,  we  think  he  must  be  considered  in  the  same 
situation  as  to  responsibility,  as  if  the  facts  with  respect  to  which 
the  delusion  exists,  were  real.  For  example :  if,  under  the  influ- 
ence of  his  delusion,  he  supposes  another  man  to  be  in  the  act  of 
attempting  to  take  away  his  life,  and  he  kills  that  man,  as  he  sup- 
poses, in  self-defence,  he  would  be  exempt  from  punishment.  If 
his  delusion  was,  that  the  deceased  had  inflicted  a  serious  injury  to 
his  character  and  fortune,  and  he  killed  him  in  revenge  for  such 
supposed  injury,  he  would  be  liable  to  punishment." 

§  126.  So  far  as  the  law  thus  stated  goes — and  it  is  stated  with 
extreme  caution — it  has  been  always  recognized  as  bind-     .    , 

•'  o  And  so  m 

ing  in  this  country.     Even  where  there  is  no  pretence    thiscoun- 

.  .  try. 

of  insanity,  it  has  been  held  in  one  state,  that,  if  a  man, 
though  in  no  danger  of  serious  bodily  harm,  through  fear,  alarm,  or 
cowardice,  kill  another  under  the  impression  that  great  bodily 
injury  is  about  to  be  inflicted  on  him,  it  is  neither  manslaughter 
nor  murder,  but  self-defence  ;i  and  though  this  proposition  is  too 
broadly  stated,  as  is  remarked  by  Bronson,  J.,  when  commenting 
on  it  afterwards  in  New  York,  and  should  be  so  qualified  as  to 
make  it  necessary  that  there  should  be  facts  and  circumstances 

'  Grainger  v.  State,  5  Yerg.  459. 

123 


§  126.]       MENTAL    UNSOUNDNESS    IN   ITS   LEGAL    RELATIONS. 

existing  which  would  lead  the  jury  to  believe  that  the  defendant 
had  reasonable  (in  proportion  to  his  own  lights)  grounds  for  his 
belief,  yet  with  this  qualification  it  is  now  generally  received.^  And, 
indeed,  as  shown  by  Mr.  Justice  Bronson,  in  the  case  just  noticed, 
after  the  general  though  tardy  acquiescence  in  Selfridge's  case, 
where  the  same  view  was  taken  as  early  as  1805,  by  Chief  Justice 
Parker,  of  Massachusetts,  and  after  the  almost  literal  incorporation 
of  the  leading  distinctions  of  the  latter  case  in  the  revised  statutes 
of  New  York,  as  well  as  into  the  judicial  system  of  most  of  the 
states,  the  point  must  be  considered  as  finally  at  rest.  Perhaps 
the  doctrine,  as  laid  down  originally  in  Selfridge's  case,  would  have 
met  with  a  much  earlier  acquiescence  had  not  the  supposed  political 
bias  of  the  court  in  that  extraordinary  trial,  and  the  remarkable 
laxity  shown  in  the  framing  the  bill  and  in  the  adjustment  of  bail, 
led  to  a  deep-seated  professional  prejudice  which  struck  at  even 
such  parts  of  the  charge  as  were  indisputably  sound.^ 


1  Shorter  v.  People,  2  Comst.  193, 
202;  4  Barb.  460;  People  v.  McLeod, 
1  Hill,  377  ;  People  v.  Pine,  2  Barb. 
566;  State  v.  Scott,  4  Ired.  409; 
Roberts  v.  State,  3  Ga.  310  ;  Monroe  v. 
State,  5  Ga.  85  ;  Com.  v.  Rogers,  supra. 
See  generally  Wh.  Cr.  L,  8tli  ed.  §§ 
38  et  seq.,  for  other  cases.  See  also 
Sloo's  case,  rep.  15  Am.  Journ.  Ins.  33  ; 
McFarland's  case,  8  Abb.  N.  Y.  Pr.  N. 
S.  57. 

2  In  another  work  (Wharton's  Cr. 
L.  2d  ed.  390  ;  8th  ed.  §  38),  the  pre- 
sent writer  went  into  a  critical  exami- 
nation of  Selfridge's  case,  and  advanced 
the  opinion  that  the  verdict,  as  well  as 
the  preliminary  proceedings,  were  in- 
consistent with  a  just  appreciation  of 
human  life,  and  with  the  dignity  of 
public  justice.  This  view  is  by  no 
means  retracted  ;  and  the  gradual  de- 
velopment of  the  political  correspon- 
dence of  those  days  shows  that  an  ap- 
proval of  Selfridge's  course — the  shoot- 
ing down  by  a  man  of  thirty  of  a  lad 
of  eighteen,  then  an  undergraduate  in 

124 


Harvard  College,  because  the  latter 
thought  proper  to  suppose  that  the 
former,  whose  father  he  had  just  posted, 
might  be  ready  to  avenge  the  insult — 
was  made  a  party  test.  Indeed,  John 
Adams  (Cunning.  Cor.  70)  tells  us  that 
"  the  great  political  parties  in  the  state 
were  arranged  under  their  respective 
standards  on  the  simple  question  of  the 
guilt  or  innocence  of  an  individual 
under  a  criminal  accusation."  But  it 
is  due  to  the  excellent  jurist  who  pre- 
sided at  the  trial  to  say  that,  however, 
in  the  reception  and  adjustment  of  bail 
— two  thousand  dollars — he  may  have 
been  influenced  by  those  political  heats 
to  which  even  the  bench  in  those  times 
was  subject,  his  charge  is  a  fair  state- 
ment of  the  English  common  law,  as 
adapted  to  our  social  condition.  And, 
however  great  may  have  been  the  zeal 
with  which  the  case  has  been  assailed, 
it  is  now  impossible  to  refuse  to  recog- 
nize it  as  having  been  largely  and 
definitely  influential  in  settling  this 
branch  of  American  jurisprudence. 


INSANITY   AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  129. 

§  127.  Delusions  to  constitute  a  defence  must  be  objective  as 
distinguished  from  subjective.     They  must  be  delusions    j. 
of  the  senses,  or  such  as  relate  to  facts  or  objects,  not   must  be 
mere  wrong  notions  or  impressions  ;  and  the  aberration 
in  such  case  must  be  mental,  not  moral,  so  as  to  affect  the  intellect 
of  the  individual.     It  is  not  enough  that  they  show  a  diseased  or  a 
depraved  state  of  mind,  or  an  aberration  of  the  moral  feelings,  the 
sense  of  right  and  wrong  continuing  to  exist,  although  it  may  be  in  a 
perverted  condition.    To  enable  them  to  be  set  up  as  a  defence  to  an 
indictment  for  a  crime,  they  must  go  to  such  crime  objectively  ;  ^.  e., 
they  must  involve  an  honest  mistake  as  to  the  object  at  which  the 
crime  is  directed.^ 

§  128.  The  distinction  before  us  may  be  illustrated  by  Levett's 
case,  which  has  never  been  questioned,  and  which  has    j^^^  t  at  d 

been  sanctioned  by  the  most  rigid  of  the  common  law    t>y  Levett's 

case. 
jurists,  where  it  was  held  a  sufficient  defence  to  an  in- 
dictment for  murder,  that  the  mortal  blow  was  struck  by  the  de- 
fendant under  the  delusion  that  the  deceased  was  a  robber,  who  had 
entered  the  house.^  The  delusion  was  objective,  and  therefore  a 
defence.  Had  the  delusion  been  merely  subjective — ^'.  e.  an  un- 
founded prejudice — it  would  have  been  no  defence. 

§  129.  In  none  of  the  cases  which  have  just  been  noticed,  is  the 
actual  existence  of  danger  an  essential  ingredient,  and 
certainly,  as  the  intentions  of  an  assailant  are  incapable    to  be  deter- 
of  positive  ascertainment,  such  a  danger  can  never  be    "eftnd-'^°°^ 
absolutely  shown  to  exist.     It  is  true,  that,  when  the    ant's stand- 

.  .....  point. 

point  has  not  been  directly  before  the  judicial  mind,  dicta 
have  been  thrown  out  to  the  effect  that  the  danger  must  be  such  as 
to  alarm  a  reasonable  man ;  but,  whenever  the  requisite  state  of 
facts  has  been  presented,  courts  have  not  hesitated  to  say  that  the 
danger  must  be  estimated,  not  by  the  jury's  standard,  but  by  that 
of  the  defendant  himself.  Thus,  an  enlightened  and  learned  judge 
in  Pennsylvania,  one  who  would  be  among  the  last  to  weaken  any 
of  the  sanctions  of  human  life,  directed  the  jury  that  they  should 
take  into  consideration  "  the  relative  characters,  as  individuals,"  of 

'  R.  V.  Burton,  3  F.  &  F.  772  ;  R.  v.  2  Levett's  case,  Cro.  Car.  438,  1  Hale, 
Townley,  3  F.  &  F.  839  ;  see  also  infra,  42,  474,  Wharton's  Cr.  L.  8tli.  ed.  § 
§§  165,  170.  38. 

125 


§  131.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

the  deceased  and  the  defendant,  and,  in  determining  whether  the 
danger  really  was  imminent  or  not,  to  inquire  "  whether  the  deceased 
was  bold,  strong,  and  of  a  violent  and  vindictive  character,  and  the 
defendant  much  weaker,  and  of  a  timid  disposition."  And  to  the 
same  effect  will  be  found  cases  in  other  American  courts  elsewhere 
more  particularly  noticed.^ 

§  130.  If,  therefore,  a  delusion  that  a  party  is  in  danger,  whether 
g  ,      such  delusion  be   the  result  of  insanity  or  of  physical 

lusionasto  causes,  is  a  justification  of  violence  adequate  to  remove 
the  supposed  danger — and  the  answer  of  the  English 
judges  on  this  point  corresponds  with  our  own — it  is  difficult  to 
avoid  the  conclusion,  that  a  delusion  as  to  the  amount  of  force  neces- 
sary to  obviate  the  imagined  attack  should  be  equally  potent.  Thus, 
for  instance,  it  is  stated  by  the  English  judges,  that  if  the  party  is 
under  an  insane  delusion  that  the  deceased  is  about  to  take  his  life, 
and  he  kills  him  to  prevent  it,  he  is  to  be  exempt  from  punishment. 
The  gist  of  this  position  consists  in  the  delusion.  If,  therefore,  by 
an  insane  delusion,  or  depravation  of  the  reasoning  faculty,  the  de- 
fendant insanely  believes,  either  that  the  imagined  evil  is  so  intol- 
erable as  to  make  life-taking  necessary  or  justifiable  in  order  to 
avert  it,  or  that,  while  the  evil  is  of  a  lesser  grade,  life-taking  is  an 
appropriate  and  just  way  of  getting  rid  of  it,  the  same  reasoning 
applies.     The  principle  may  logically  be  stated  thus : — 

1.  Objective  delusion  exempts  from  punishment  the  perpetrator 
of  an  act  committed  under  its  influence. 

2.  The  belief,  unfounded  in  fact,  that  a  party  is  in  immediate 
danger  of  life  from  another,  is  such  a  delusion. 

3.  Therefore,  a  party  committing  homicide  under  such  delusion, 
is  not  liable  to  punishment.^ 

§  131.  The  minor  premise,  it  will  at  once  be  seen,  may  be  va- 
ried, without  weakening '  the  conclusion,  by  inserting  in  its  place 

•  See  Wh.  Cr.  L.  8th  ed.  §  39  ;  Wli.  for  the  insane,  that,  in  all  cases  where 

on  Horn.  §  490.  a  party  is  acquitted  on  ground  of  insan- 

2  It  is  important  that  by  "punish-  iiy,  strict   confinement   should   be  di- 

ment,"  as  here  used,  should  be  under-  rected,  in  such  a  way  as  will  exempt 

stood  such  punishment  as  is  inflicted  the  community  from  any  probable  re- 

on  persons  of  sound  mind.     Itisessen-  currence   of   such   delirious    outrages, 

tial,  however,  to  the  policy  of  the  pres-  This  will  hereafter  be  more  fully  con- 

ent  more  humane  mode  of  treatment  sidered :  infra,  §  775. 

126 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  132. 

any  insane  delusion,  the  existence  of  which  would  deprive    So  as  to  de- 

lusion  nfi  to 

the  act  of  guiltj  consciousness.  That  an  insane  delusion,  the  party 
that  the  party  attacked  is  not  a  human  being,  will  have  i^eino-  a  hu- 
this  effect,  even  though  the  party  himself  knows  when  ™'^"  being, 
committing  the  act  that  he  is  doing  wrong,  and  is  violating  the  laws 
of  the  land,  is  illustrated  by  Lord  Erskine,  in  a  well-known  case: 
"Let  rae  suppose,"  he  said,  "the  character  of  an  insane  delusion 
consisted  in  the  belief  that  some  given  person  was  any  brute  animal, 
or  an  inanimate  being  (and  such  cases  have  existed),  and  that,  upon 
the  trial  of  such  a  lunatic  for  murder,  you,  being  on  your  oaths, 
were  convinced,  upon  the  uncontradicted  evidence  of  one  hundred 
persons,  that  he  believed  the  man  he  had  destroyed  to  have  been  a 
potter's  vessel ;  that  it  was  quite  impossible  to  doubt  that  fact,  al- 
though to  other  intents  and  purposes  he  was  sane — answering,  rea- 
soning, acting  as  men  not  in  any  manner  tainted  with  insanity  con- 
verse and  reason  and  conduct  themselves.  Suppose,  further,  that 
he  believed  the  man  whom  he  destroyed,  but  whom  he  destroyed  as 
a  potter's  vessel,  to  be  the  property  of  another,  and  that  he  had 
malice  against  such  supposed  person,  and  that  he  meant  to  injure 
him,  knowing  the  act  he  was  doing  to  be  malicious  and  injurious  ; 
and  that,  in  short,  he  had  full  knowledge  of  all  principles  of  good 
and  evil;  yet  would  it  be  possible  to  convict  such  a  person  of  mur- 
der, if,  from  the  influence  of  the  disease,  he  was  ignorant  of  the 
relation  in  which  he  stood  to  the  man  he  had  destroyed,  and  was 
utterly  unconscious  that  he  had  struck  at  the  life  of  a  human 
being  ?"i 

§  132.  An  instance  of  an  hallucination,  founded  on  auricular 
deception,  is  given  in  Charles  Brockden  Brown's  novel    g       .    , 
of  Wieland,  and  is  based  on  facts  at  the  time  well  known   lusion  as  to 

,    ,  .  .  .  supernatu- 

m  rhiladelphia.  A  man  oi  excessively  morbid  tempera-  rai  com- 
ment is  so  wrought  up  by  ventriloquism,  as  to  believe  ™^^  * 
himself  under  supernatural  command  to  kill  his  wife.  He  does  so 
under  the  stress  of  what  he  conceives  to  be  a  pure  legal  necessity. 
A  similar  case  may  be  supposed  in  a  sincere  believer  in  spirit-rap- 
ping, who  is  ordered  by  the  medium  to  commit  a  violation  of  the 
law.  In  this  case  the  medium  is  the  principal  in  the  first  degree, 
but  the  actual  perpetrator  of  the  act,  under  the  present  condition  of 

'  Winslow  on  Plea  of  Insanity,  6. 

127 


§  133.]       MENTAL    UNSOUNDNESS   IN    ITS    LEGAL   RELATIONS. 

the  law,  is  entitled  to  a  judicial  affirmation  of  insanity.  Similar 
delusions  in  cases  of  sleep-drunkenness  have  been  held  to  confer 
irresponsibility.  The  case  is  like  that  of  an  executioner  executing 
the  wrong  person  through  a  mistake  in  the  warrant.  If  there  is 
negligence,  the  executioner  is  liable  for  negligent  homicide.  If 
there  is  no  negligence,  then  it  is  a  case  of  misadventure,  suppos- 
ing the  court  issuing  the  warrant  to  have  had  jurisdiction.^  An- 
other line  of  illustration  may  be  found  in  those  cases  in  which 
officers  of  justice,  in  endeavoring  to  quell  a  riot,  kill  by  mistake  an 
innocent  by-stander.^ 

§  133.  A  man  fancies  himself  to  be  the  Grand  Lama,  or  Alexan- 
der the  Great,  and  kills  another  for  an  invasion  of  his 
scrousnesT'   sovereignty.     He  knows  he  is  doing  wrong ;    perhaps, 
™iisisrent     ^^^^  ^  sensc  of  guilt,  he  conceals  the  body ;  he  may 
^it^  have  a  clear  perception  of  the  legal  consequences  of  the 

irresponsi-  ^  ^  •     •  <? 

biiity.  act.     According  to  Mr.  Wigan,  such  an  association  oi  a 

rule  to  this  consciousness  of  the  objective  guilt  and  consequences  of 
^^^^*"  an  act,  with  an  insane  delusion  as  to  its  subjective  rela- 

tion, is  readily  explained  on  the  principle  of  the  duality  of  the  hu- 
man mind ;  but,  however  this  may  be,  it  is  a  matter  in  which  all 
observers  agree  that  the  lunatic  is,  in  most  instances,  conscious  of 
the  moral  relations  of  his  conduct.^  Nor,  even  under  the  severe 
tests  of  the  older  English  text  writers  (who  have,  by  their  failure 
to  reach  this  point,  demonstrated  how  dangerous  it. is,  with  our  im- 
perfect experience,  to  attempt  to  codify  or  dogmatize  the  laws  in  a 
few  absolute  propositions),  has  this  truth  evaded  the  practical  recog- 
nition of  the  courts.  Thus,  in  a  case  where  it  was  proved  that  the 
defendant  had  taken  the-  life  of  another  under  the  notion  that  he 
was  set  about  with  a  conspiracy  to  subject  him  to  imprisonment  and 
death.  Lord  Lyndhurst,  while  quoting,  with  apparent  entire  acqui- 
escence, Hale's  doctrine,  as  affirmed  by  Sir  James  Mansfield  in 
Bellingham's  case,  felt  himself  at  liberty  to  tell  the  jury  that  they 
might  "  acquit  the  prisoner  on  the  ground  of  insanity,  if  he  did  not 

'  See  Wh.  Cr.  L.  8tli  ed.  §  462.  sur   alienation   mentale,    2d  ed.,  Par. 

2  Wh.  Cr.  L.  8th  ed.  §  120,  1809, 156  ;  Kiel,  Fieberlehre,4Bd.  396  ; 

3  Wigan  on  Insanity,  etc.,  London,  Groos,  Die  Lehre  von  der  Mania  sine 
1844,  65;  Winslow,  Plea  of  Insanity,  Delirio,  Heidelberg,  1830 ;  DeBoismont 
16  ;  Ray,  Med.  Jur.  of  Ins.  §  17  ;  Sie-  on  Halluc,  Phil.  1853,  506. 

bold,  Gericht  Med.  §  219  ;  Pinel,  Traite 
128 


INSANITY    AS    A   DEFENCE    TO    CHARGE    OF   CRIME.       [§  134. 

know,  when  he  committed  the  act,  what  the  effect  of  it  was  with 
reference  to  the  crime  of  murder."  Now,  an  acquittal  would  be 
easy  enough  if  it  be  necessary,  in  order  to  create  responsibility, 
that  the  party  should  know  the  eifect  of  the  act  with  reference  to  a 
question  whose  meaning,  even  to  the  court  itself,  appears  to  have 
been  enveloped  in  so  much  mist.  But  there  can  be  no  doubt,  after 
careful  examination  of  the  whole  case,  that  the  point  Lord  Lynd- 
hurst  decided  was,  that  a  man  who,  under  an  insane  delusion,  shoots 
another,  is  irresponsible  when  the  act  is  the  product  of  the  delusion. 
Such,  indeed,  on  general  reasoning,  must  be  held  to  be  the  law  in 
this  country,  and  such  will  it  be  held  to  be  when  any  particular  case 
arises  which  requires  its  application.  The  fact  that  against  this 
view  militate  certain  expressions — obiter  dicta — in  recorded  opin- 
ions, as  well  as  in  the  answers  of  the  English  judges,  will  not  pre- 
vent its  practical  recognition,  any  more  than  Lord  Lyndhurst  was 
prevented,  by  the  first  class  of  authorities,  from  advising  the  acquit- 
tal of  Offord,  and  afterwards  maintaining  that  the  acquittal  was  con- 
sistent with  the  very  precedents  now  cited  against  it.' 

§  134.  In  America,  the  principle  is  too  well  settled  to  admit  of 
dispute.     "Monomania,"   said   Chief  Justice  Shaw,  in  1844,^  in 

'  In  People  v.  Coleman,  N.  Y.,  De-  actor,    can    amount    to   that    insanity 

cember,  1881,  Judge  Davis  charged  the  which  in  law  disarms  the  act  of  crimi- 

jury   as   follows:    "In   this    state  the  nality.     Under   such   notions  of  legal 

test  of  responsibility  for  criminal  acts,  insanity  life,  property,  and  rights,  both 

where  insanity  is  asserted,  is  the  ca-  public  and  private,  would  be  altogether 

pacity  of  the  accused  to  distinguish  be-  insecure,  and  every  man  who,  by  brood- 

tweeu  right  and  wrong  at  the  time  and  ing  over  his  wrongs,  real  or  imaginary, 

with   respect  to  the  act  which  is  the  shall  work  himself  up  to  an  irresistible 

subject  of  inquiry."     He  further  said  impulse  to  avenge  himself  or  his  friend 

that  the  question  for  the  jury  to  deter-  or  his  party,  can  with  imjjunity  become 

mine  is  "whetlier  at  the  time  of  doing  a  self-elected  judge,  jiivy,  and  execu- 

the  act  the  prisoner  knew  what  she  was  tioner  in  his  own  case,  for  the  redress 

doins  and  that  she  was  doing  a  wrong  ;  of  his  own  injuries  or  the    imaginary 

or,  in  other  words,  did  she  know  that  wjongs  of  his  friends,  his  party,  or  his 

she  was  shooting  at  the  deceased,  and  country.     But,  happily,  that  is  not  the 

that  such  shooting  was  awrongful  act?"  law,  and  whenever  such   ideas  of  in- 

Thejudge  further  said  :  "No  imaginary  sanity  are  applied  to  a  given  case  as 

inspiration  to  do  a  personal  or  private  the  law  (as  too  often  they  have  been), 

wrong,  under  a  delusion,  a  belief  that  crime  escapes  punishment,  not  through 

some  great  public  benefit  will  liow  from  the  legal  insanity  of  the  accused,  but 

it,  where  the  nature  of  the  act  done  and  through     the    emotional     insanity    of 

its  probable  consequences,  and  that  it  courts  and  juries." 
is  in  itself  wrong,  are  known    to  the         ^  Com.  v.  Rogers,  7  Mete.  5Q0. 

VOL.  I.— 9  129 


§  136.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

So  in  Ame-  an  Opinion  hereafter  to  be  more  fully  quoted,  "  may  oper-, 
ate  as  an  excuse  for  a  criminal  act,"  when  "the  delusion 
is  such  that  the  person  under  its  influence  has  a  real  and  firm  belief 
of  some  fact,  not  true  in  itself,  but  which,  if  it  were  true,  would 
excuse  his  act ;  as  where  the  belief  is  that  the  party  killed  had  an 
immediate  design  upon  his  life,  and  under  that  belief  the  insane 
man  kills  in  supposed  self-defence.  A  common  instance  is  where 
he  fully  believes  that  the  act  he  is  doing  is  done  by  the  immediate 
command  of  God,  and  he  acts  under  the  delusive  but  sincere  belief 
that  what  he  is  doing  is  by  the  command  of  a  superior  power,  which 
supersedes  all  human  laws  and  the  laws  of  nature.^'' 

§  135.  We  have  already  noticed  the  distinction  between  objective 
delusions  (i.  e.,  visual  or  other  sensual  mistakes),  and  sub- 
between       jective  delusions  {i.e.,  delusions  as  to  matters  of  personal 
aM^sub-       duty).    As  to  the  first,  we  have  seen  that  it  is  a  defence  if 
jective  de-     a  person  non-neffliarently  does  an  act  which,  if  his  senses 

lusions.  ^  o    to         J  •>        ^  ^ 

had  not  been  mistaken,  would  not  have  been  an  infraction 
of  the  law.  With  regard  to  subjective  delusions,  we  must  take 
another  test.     Such  delusions  are  no  defence  unless  insane. 

§  136.  If  there  be  reason  enough  to  dispel  the  delusion ;  if  the 
^,  defendant  obstinately  refuses,  under  such  circumstances, 

son  can         to  listen  to  arguments  by  which  the  delusion  could  be 

dispel  sub-         -,•  ^^      -,       -o  I'l  111- 

jective  de-  dispelled;  it,  on  the  contrary,  he  cherishes  such  delusion, 
respons'ibii-  ^^^  makes  it  the  pretext  of  wrongs  to  others,  then  he  is 
ity  exists.  responsible  for  such  wrongs.  Thus,  in  a  case  of  homi- 
cide in  Delaware,  in  1851,  the  deceased  being  the  defendant's  wife, 
the  defence  was  delusion  consisting  in  a  belief  that  his  wife  was 
untrue  to  him,  that  his  children  were  begotten  by  his  wife's  inter- 
course with  another,  and  that  sundry  conjurations  were  being  prac- 
tised upon  him,  and  the  evidence  showed  that  he  was  a  shrewd  and 
wealthy  business  man,  the  court  charged  the  jury  that  if  a  person, 
otherwise  rational,  commit  a  homicide,  though  aff'ected  by  delusions 
on  subjects  with  which  the  act  is  connected,  he  is  criminally  re- 
sponsible, if  he  were  capable  of  the  perception  of  consciousness  of 
right  and  wrong  as  applied  to  the  act,  and  had  the  ability  through 
that  consciousness  to  choose  by  an  effort  of  the  will  whether  he 
would  do  the  deed.^ 

'  State  u.  Windsor,  5  Harr.  512.  The     plained  of.     The  verdict  of  the  jury, 
charge   in   this   case   cannot   be   com-     however,  on  the  facts  hereafter  exhi- 

130 


INSANITY   AS    A   DEFENCE    tI)    CHARGE    OF   CIIIME.       [§  139. 

§  137.  The  test,  therefore,  to  which  we  are  led  is,  was  the  delusion 
pleaded  as  a  defence  the  delusion  of  an  insane  person  ?    subjective 
If  not,  he  has  reason  enough  to  dispel  or  correct  it ;  and    delusions 

'  ....  must  be 

his  refusal  to  do  so  does  not  invest  him  with  irrespon-    insane  to 
sibility.     Thus  the  Mormon  prophets  claim,  it  is  said,  a    spons*ibiu' 
direct  revelation  permitting  them  to  practise  polygamy,    ^^y- 
Would  they  be  permitted  to  plead  their  delusion  in  this  respect  as  a 
bar  to  an  indictment  ?    Certainly  not.    And  the  reason  is  that  they 
are  shrewd,  sane  men,  and  must,  therefore,  be  held  responsible  for 
their  delusions.^ 

On  the  other  hand,  cases  have  not  been  infrequent  in  which 
parents,  charged  with  the  homicide  of  their  children,  have  been 
permitted  to  show  that  they  acted  under  the  stress  of  what  they 
held  to  be  a  divine  command  ;  and,  when  it  has  been  satisfactorily 
proved  that  such  was  their  belief,  they  have  been  acquitted  on  the 
ground  of  irresponsibility. 

§  138.  What  is  the  reason  of  this  difference  ?  It  is  simply  this: 
that  in  the  first  case  there  is  no  proof  offered  of  insanity,  And  proved 
and  the  defendants,  in  fact,  are  men  whose  shrewdness  *°  ^®  ^^^ 
and  business  abilities  show  them  to  be  eminently  sane.  In  the 
other  class  of  cases,  there  are  no  acquittals  unless  there  is  evidence 
of  insanity  aliunde.  A  sane  man  who  kills  his  child  under  the 
stress  of  a  supposed  revelation,  is  as  much  responsible  to  penal 
justice  as  is  the  Mormon  who,  under  a  similar  plea,  commits  bigamy. 
The  question  in  each  case  is,  was  the  defendant  sane  f  Had  he 
reason  enough  to  know  what  the  law  of  the  land  was,  and  to  know 
he  must  not  disobey  it  ?  If  he  had,  he  must  bear  the  penalty  of 
his  disobedience.  It  is  true  that  such  insanity  may  be  presumed 
to  some  extent  from  the  nature  of  the  act.  Where  an  affectionate 
father  kills  his  child,  the  presumption  is  strong,  and  requires  little 
additional  proof.  In  other  cases,  where  the  act  is  simply  the  grat- 
ification of  passion,  the  presumption  amounts  to  nothing.  But  in 
either  case,  to  entitle  the  delusion  to  be  a  defence,  insanity  must, 
by  some  mode  of  proof,  be  made  out. 

§  139.  If,  rejecting  this  view  that  general  sanity  is  the  test,  we 
say  that  the  existence  of  a  delusion  by  a  sane  person  makes  that 

bited,  cannot  be  sustained  ;  as  the  de-         »  Wh.  Cr.  L.  8th  ed.  §§  84,  850,  1682, 

fendant's  mmd  seems  to  have  been  so  1715  ;    citing  U.  S.  v.  Reynolds,  98  U. 

far    shattered   as   to   be   without    the  S.  145. 
power  of  dispelling  the  delusions. 

131 


§  140.]       MENTAL    UNSOUNDNESS    IN   ITS    LEGAL    RELATIONS. 

Where  person  irresponsible,  we  expand  the  definition  of  irre- 

otiberwise  sponsibility,  not  only  dangerously,  but  unphilosophically. 
ronsibii-  Multitudes  of  men  whom  it  would  be  both  absurd  and 
ityremains.  mischievous  to  treat  as  irresponsible  have  apparent  de- 
lusions or  "  fixed  ideas."  Several  illustrations  of  this  have  been 
already  introduced.^     One  or  two  others  may  now  be  added. 

§  140.  Morel  (1869)  tells  us  of  a  French  judge,  whose  official 
lUustra-  character  was  marked  by  the  most  exemplary  efficiency, 
tions.  yf\^Q  separated  from  his  family,  took  a  room  in  a  hotel, 

in  which  he  permitted  no  visitors,  and,  when  he  went  into  the 
street,  took  great  pains,  in  crossing  the  lines  of  the  trottoir,  lest  he 
should,  with  such  lines,  make  the  form  of  a  cross,  which  he  held  to 
be  bad  luck.  Indeed,  we  would  find  abundant  illustrations  of  the 
proposition  before  us,  even  if  we  should  confine  ourselves  to  the 
history  of  judges — men  whose  time  is  spent  in  w^eighing  evidence 
and  declaring  law,  and  men  who  apply  to  others,  as  they  render 
for  themselves,  responsibility  for  all  moral  acts.  Lord  Kenyon 
could  never  overcome  his  fear  of  poverty,  and  his  nervous  dread  of 
spending  even  a  farthing  except  for  necessities.  Of  Lord  Stowell, 
even  after  he  had  accumulated  an  enormous  fortune.  Sir  Henry 
Holland,  who  attended  him  as  physician,  writes  :  "  Lord  Alvanley's 
description  of  him  as  a  conceited  Muscovy  duck  had  an  amusing 
personal  reality  about  it,  felt  even  by  those  who  knew  his  high 
merits  as  a  judge  and  master  of  international  law.  His  house 
curiously  illustrated  the  habits  of  the  man,  in  its  utter  destitution 
of  all  the  appliances  of  luxury  and  of  comfort.  The  furniture  was 
never  either  changed  or  cleaned.  Year  after  year  I  wrote  pre- 
scriptions there  with  the  same  solitary  pen — the  single  one,  I 
believe,  in  his  possession,  and  rarely  used  by  himself  after  his 
retirement  from  public  business."  Of  Lord  Erskine,  Sir  Henry 
Holland  tells  us  that "  his  mind,  too,  when  I  knew  him,  was  clouded 
by  little  foibles  and  superstitions.  I  can  recollect  a  dinner  at  Sir 
S.  Romilly's,  where  his  agitation  was  curiously  shown  in  his  reluc- 
tance to  sit  down  as  one  of  thirteen  at  table,  and  by  the  relief  he 
expressed  when  the  fourteenth  guest  came  in."^  Lord  Eldon  labored 
under  the  delusion,  that,  even  after  he  had  really  made  up  his  mind, 

'  See  supra,  §§  34-52 ;  also  infra,  §§         *  See  also  Lady  Clementina  Davies's 
723-743.  Recollections  of  Society,  vol.  i.  p.  10. 

132 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.      [§  141. 

and  had  so  expressed  himself  lucidly  and  conclusively,  there  was 
still  ground  for  him  to  doubt ;  and  this  habit  was  the  cause  of  great 
delay  to  suitors,  and  of  great  distress  to  himself.  Lord  Campbell 
tells  us  that  Lord  Lyndhurst  was  governed  by  the  delusions  of 
■physical,  and  Lord  Brougham  by  those  of  intellectual  vanity  ;  and 
more  than  once  in  Lord  Brougham's  life  was  "  his  mind  clearly  off 
its  balance,"  and  so  wild  and  violent  were  at  one  time  its  perturba- 
tions, that  it  was  considered  necessary  to  place  him  in  seclusion.^ 
Among  American  judges,  analogous  illustrations  may  be  found. 
Judge  Brackenridge,  of  Pennsylvania,  is  reported  to  have,  on  a  hot 
day,  when  holding  court  at  Sunbury,  gradually  taken  off  his  clothes, 
till  at  last  he  was  naked.  Judge  Baldwin,  of  the  Supreme  Court 
of  the  United  States,  was  a  hypochondriac.  A  distinguished  New 
England  judge,  it  is  said,  imagined  that  a  dropsical  affection  under 
which  he  labored  was  a  sort  of  pregnancy.  Yet  in  none  of  these 
cases  was  insanity  ever  charged.  And  the  reason  is  this,  that, 
whatever  may  have  been  the  delusions  or  "  fixed  ideas"  of  these 
eminent  men,  they  had  reason  enough  to  conquer  these  delusions 
whenever  this  was  necessary  to  avoid  public  censure.  When  they 
felt  that  they  were  beyond  law,  they  would  indulge  their  caprices. 
When  they  felt  the  pressure  of  law,  then  these  delusions  would  be 
restrained.  Thus  Lord  Chancellor  Clare  had,  or  feigned  to  have, 
so  unconquerable  an  animosity  to  Curran,  that  he  could  not  listen 
to  that  illustrious  advocate.  But  when  Curran  met  this  by  one  of 
the  most  powerful  invectives  that  the  records  of  forensic  eloquence 
preserve,  the  "  irresistible  impulse"  was  resisted.  Lord  Clare  was 
not  insane.  He  was  simply  a  man  of  strong  prejudices  as  well  as 
of  strong  reason.  AVhen  necessary — though  only  when  necessary 
— reason  would  prevail. 

§  141.  With  the  sane,  therefore,  so  far  from  subjective  delusion 
creating  irresponsibility,  it  is  irresponsibility  that  creates  Danger  of 
subiective  delusion.     Of  this  we  might  find  many  addi-    assigning 

''      ^  _  ...  irresponsi- 

tional  illustrations.     A  monk  has  an  ecstatic  vision.     He    biiity  to 
tells  the  vision,  and,  instead  of  being  rebuked,  is  ad- 
mired ;  and  visions  speedily  fill  every  monastic  cell.     Or  a  romantic 
poet,  as  was  the  case  with  so  many  in  Germany  when  Napoleon  left 
to  German  thought  no  other  province  than  that  of  imagination, 

•  Edinb.  Rev.,  Apr.  1869.     Camp.  Brougham,  p.  476. 

133 


§  142.]       MENTAL   UNSOUNDNESS   IN    ITS   LEGAL   RELATIONS. 

imagines  some  heroic  epoch  of  the  past  to  Avhich,  like  a  troubadour 
knight,  he  consecrates  his  song.  He  is  admired,  and  his  ecstasies 
are  imitated,  until  there  springs  up  a  whole  school  of  Romanticists 
as  wild  as  Don  Quixote.  Or,  at  a  period  of  high  religious  enthu- 
siasm, a  woman  breaks  into  hysteria.  Instead  of  being  put  under 
medical  care,  she  is  injudiciously  spoken  of  as  exhibiting  special 
religious  feeling  ;  and  hysterical  symptoms  burst  out  on  every  side. 
The  fancy  of  an  individual  becomes,  if  unrebuked  by  public  opinion, 
the  epidemic  of  an  epoch. 

§  142.  It  being  then  accepted  law  that  a  delusion,  by  a  sane 
.     .  person,  does  not  make  him  irresponsible,  let  us  inquire 

sanity  a  what,  in  cases  of  delusion,  is  the  test  of  sanity.  And 
test 

here  two  distinct  psychical  conditions  are  to  be  scru- 
tinized. 
First,  when  the  delusion  is,  as  Dr.  Liman  describes  it,  the  residuum 
of  a  prior  insane  state.  Delirium  has  passed  away,  but  the  old  dis- 
ease still  shows  itself  in  the  havoc  it  creates,  sometimes  in  mental 
debility,  sometimes  in  the  derangement  of  the  mechanism  of  associa- 
tion and  perception,  leading  to  chimeras,  to  absurd  prejudices,  if  not 
to  hallucinations.  This  state,  however,  as  Griesinger,  a  very  capable 
medical  psychologist  of  late  date  (1871),  argues,  is  not  the  restora- 
tion of  the  equilibrium  of  sanity .  The  patients  are  not  what  they  were 
in  a  sane  state,  ijlus  some  errors  or  delusions.  They  are  thoroughly 
changed.  There  has  been  such  a  shock  to  the  structure  of  the  mind 
that,  although  it  is  apparently  calm,  it  does  not  act  with  uniformity. 
The  defect  is  internal ;  something  like  that  of  a  clock  whose  works 
have  been  disturbed,  and  which,  after  being  repaired,  may  strike  a 
series  of  hours  accurately,  and  then  go  wrong.  The  mere  presence 
of  a  delusion,  it  is  true,  might  not  by  itself  prove  the  imperfectness 
of  the  recovery.  But  it  is  otherwise  when  the  delusion  is  harbored, 
and  when  the  patient  has  not  power  to  throw  it  off.  Thus  it  is  that 
in  such  cases,  the  fact  often  is,  not  that  the  patient  retains  but  a 
single  insane  delusion,  but  that  an  unsettled  mind  has  taken  the 
particular  channel  of  this  one  delusion  to  pour  itself  out.  A  dam 
across  one  of  our  mountain  streams  is  swept  away,  the  stream  first 
running  over  what  is  the  lowest  point  in  the  dam's  crest.  The  diffi- 
culty is,  not  the  lowness  of  this  point,  but  the  height  of  the  stream, 
which,  if  it  had  not  rushed  over  this  point,  would  soon  have  rushed 
134 


INSANITY    AS    A    DEFENCE    TO   CHARGE   OF   CRIME.       [§  144. 

over  another.  Kraift-Ebing,^  speaking  from  an  experience  of  almost 
unequalled  extent,  tells  us  that  the  idea  that  a  person  may  be  sane 
generally,  but  insane  as  to  some  particular  delusions,  is  as  incon- 
sistent with  practical  observations  as  it  is  Avith  sound  psychology. 
And  Dr.  Liman  (1871)  quotes  a  speaker  in  the  Paris  Academy, 
as  saying  that  a  diligent  search  in  all  the  Paris  hospitals  would 
fail  to  bring  to  light  a  single  case  of  "  pure  monomania"  of  this 
class.'' 

§  143.  Secondly,  however,  there  is  a  class  to  which  Liman  calls 
attention,  in  whom  insanity  has  not  been  established,  gQ  of  he- 
and  yet  as  to  whom,  when  delusions  exist,  the  existence  redity. 
of  such  delusions  may  present  a  strong  presumption  of  coming 
disease.  This,  he  tells  us,  is  peculiarly  the  case  with  those  with 
hereditary  disposition  to  sanity,  with  hypochondriacs,  with  "  can- 
didates" for  paralysis.  It  is  found  that  with  such  persons  "  fixed 
ideas,"  as  they  are  called,  may  exist,  without  developing  into  in- 
sanity, during  a  whole  lifetime,  because  the  patient  can  control 
them,  because  he  is  capable  of  recognizing  them  as  prejudices,  and 
because  they  have  not  become  a  part  of  himself.  He  cannot,  it 
is  true,  dismiss  the  delusion,  but  he  is  conscious  of  its  falsity,  and 
hence,  if  necessary,  can  nerve  himself  against  its  influence.  But, 
when  this  power  over  the  delusion  passes  away  ;  when  the  delusion 
not  only  cleaves  to  but  controls  the  mind  ;  when  it  is  not  simply  a 
ray  of  eccentricity,  but  a  radiating  centre  itself  from  which  a  series 
of  subordinate  false  lights  emanate ;  when  the  delusion,  e.  g., 
jealousy  or  fear,  becomes  a  passion,  growing  on  the  mind  on  which 
it  feeds,  cancerously  absorbing  into  itself  the  mind's  true  life,  and 
sending  forth  over  the  system  its  own  streams  of  disease  ;  when 
there  are,  in  particular,  sympathetic  physical  aifections  Avhich  either 
induce  or  respond  to  the  mental  disturbance,  then  we  may  infer  that 
the  patient  is  mastered  by  the  delusion  instead  of  being  its  master. 
In  this  class  of  cases  the  delusion  is  the  commencement,  in  the 
former,  the  sequence,  of  settled  insanity.^ 

§  144.  As  a  natural  result  of  the  view  above  expressed,  it  is 

•  Vierteljahrschrift  f.  Gericht.  Med.  ^  gge  ^\^q   subject   of  delusions  dls- 

xiii.  1.  cussed  at  large,  infra,  §§  723—743. 

2  See   fully,  infra,    §§    531-567,  and 
supra,  §  49. 

135 


§  145.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 


Proof  that     allowable  for  the  prosecution,  when  an  insane  "  delusion 

delusion  is       .  r  ^    c  rr  •  ^ 

sane,  com-    IS  Set  up  lor  a  aeience,to  oner  evidence  to  show  that  the 
pe  en  .  ^^  delusion"  was  sane,  in  other  words,  was  an  opinion  which 

ordinary  processes  of  reasoning  might  have  produced.^ 

§  145.  In  accordance  with  the  analogies  already  laid  down,^  and 
Delusion  ^"  obedience  to  the  general  line  of  American  authority, 
we  must  also  hold  that  a  delusion,  even  by  a  person  whose 
mind  is  so  unsound  that  the  delusion  becomes  involuntary 
and  incorrigible,  is  no  defence  to  an  indictment  for  a 
crime  not  its  immediate  product.*     Of  this  Dr.  Casper  gives  us  a 


unconnect- 
ed with 
crime  no 
defence. 


J  Com.  v.  Haskell,  2  Brewst.  491.  See 
this  viewed  psychologically,  infra,  §§ 
393,  723,  743. 

2  Supra,  §§  34-60. 

3  1  Wh.  Cr.  L.  8th  ed.  §  41 ;  State 
I'.  Lawrance,  57  Me.  574 ;  State  v^ 
Huting,  21  Mo.  464 ;  Bovard  v.  State, 
30  Miss.  600 ;  Com.  v.  Mosler,  4  Penn. 
St.  264  ;  State  v.  Gut,  13  Minn.  341.  In 
New  York,  in  Freeman's  case.  Beards- 
ley,  C.  .J.,  said,  that  "  A  state  of  gene- 
ral insanity,  the  mental  powers  being 
wholly  perverted  or  obliterated,  would 
necessarily  preclude  a  trial ;  for  a  being 
in  that  deplorable  condition  can  make 
no  defence  whatever.  Not  so,  how- 
ever, where  the  disease  is  partial,  and 
confined  to  one  subject,  other  than  the 
imputed  crime  and  contemplated  trial. 
A  person  in  this  condition  may  be  fully 
competent  to  understand  his  situation 
in  respect  to  the  alleged  offence,  and 
to  conduct  his  defence  with  discretion 
and  reason.  Of  this  the  jury  must 
judge,  and  they  should  be  instructed, 
that,  if  such  is  found  to  be  his  condi- 
tion, it  will  be  their  duty  to  pronounce 
him  sane.  In  the  case  at  the  bar,  the 
court  professed  to  furnish  a  single  cri- 
terion of  sanity,  that  is,  a  capacity  to 
distinguish  between  right  and  wrong. 
This,  as  a  test  of  insanity,  is  by  no 
means  invariably  correct ;  for,  while  a 
person  has  a  very  just  perception  of 
the  moral  qualities  of  most  actions,  he 

136 


may,  at  the  same  time,  as  to  some  one 
in  particular,  be  absolutely  insane, 
and  consequently  as  to  this  be  incapable 
of  judging  accurately  between  right 
and  wrong.  If  the  delusion  extends 
to  the  alleged  crime,  or  the  contemplated 
trial,  the  party  manifestly  is  not  in  a 
fit  condition  to  make  his  defence,  how- 
ever sound  his  mind  may  be  in  other 
respects  ;  still,  the  insanity  of  such  a 
person  being  only  partial,  not  general, 
a  jury,  under  a  charge  like  that  given 
by  the  court  below  on  this  case,  might 
find  the  prisoner  sane,  for  in  some 
respects  he  would  be  capable  of  dis- 
tinguishing between  right  and  wrong. 
Had  the  instruction  been,  that  the  pri- 
soner was  to  be  deemed  sane,  if  he  had 
a  knowledge  of  right  and  wrong  in 
respect  to  the  crime  with  which  he  stood 
charged,  there  woiild  have  been  but 
little  fear  that  the  jury  could  be  mis- 
led, for  a  person  who  justly  appre- 
hends the  nature  of  a  charge  made 
against  him,  can  hardly  be  supposed 
to  be  incapable  of  defending  himself  in 
regard  to  it  in  a  rational  way.  At  the 
same  time  it  would  be  well  to  impress 
distinctly  on  the  minds  of  jurors,  that 
they  are  to  gauge  the  mental  capacity 
of  the  prisoner,  in  order  to  determine 
whether  he  is  so  far  sane  as  to  be  com- 
petent in  mind  to  make  his  defence,  if 
he  has  one  ;  for,  unless  his  faculties 
are  equal  to  the  task,  he  is  not  in  a  fit 


INSANITY    AS    A   DEFENCE   TO   CHARGE    OF   CRIME.       [§  145. 

striking  illustration.     A  merchant,  named  Schraber,  was  convicted 
of  cheating  by  false  pretences  and  false  information,  and  was  sen- 


condition  to  be  put  on  his  trial.  For 
the  purpose  of  such  a  question,  the 
law  regards  a  person  thus  disabled  by 
disease  as  non  compos  mentis,  and  he 
should  be  pronounced  unhesitatingly- 
insane  within  the  true  extent  and 
meaning  of  this  statute. 

"Where  insanity  is  interposed  as  a 
defence  to  an  indictment  for  an  alleged 
crime,  the  inquiry  is  always  brought 
down  to  the  single  question  of  a  capa- 
city to  distinguish  between  right  and 
wrong  at  the  time  when  the  act  was 
done.  In  such  case,  the  jury  should 
be  instructed,  that  '  it  must  be  clearly 
shown  that,  at  the  time  of  committing 
the  act,  the  party  accused  was  labor- 
ing under  such  a  defect  of  reason,  from 
disease  of  the  mind,  as  not  to  know  the 
nature  and  quality  of  the  act  he  was 
doing  ;  or,  if  he  did  know  it,  that  he 
did  not  know  he  was  doing  what  was 
wrong.  The  mode  of  putting  the  latter 
part  of  the  question  to  the  jury,  on 
these  occasions,  has  generally  been 
whether  the  accused,  at  the  time  of 
doing  the  act,  knew  the  difference  be- 
tween right  and  wrong  ;  which  mode, 
though  rarely,  if  ever,  leading  to  any 
mistake  with  the  jury,  is  not  deemed 
so  accurate,  when  put  generally  and 
in  the  abstract,  as  when  put  with  re- 
ference to  the  party's  knowledge  of 
right  and  wrong  in  respect  to  the  very 
act  with  which  he  is  charged.'  This 
is  the  rule  laid  down  by  all  the  Eng- 
lish judges  but  one,  in  the  late  case 
of  McNaghten,  while  pending  in  the 
house  of  lords.  (10  C.  &  F.  200.)  In 
the  case  of  Oxford,  Lord  Denman,  C.  J., 
charged  the  jury  in  this  manner  :  '  The 
question  is,  whether  the  prisoner  was 
laboring  under  that  species  of  insanity 
which  satisfies  you  that  he  was  quite 
unaware   of  the   nature   or   character 


and  consequences  of  the  act  he  was 
committing  ;  or,  in  other  words,  whe- 
ther he  was  under  the  influence  of  a 
diseased  mind,  and  was  really  uncon- 
scious, at  the  time  he  was  committing 
the  act,  that  it  was  a  crime.'  The  in- 
sanity must  be  such  as  to  deprive  the 
party  charged  with  crime,  of  the  use 
of  reason  in  regard  to  the  the  act  done. 
He  may  be  deranged  on  other  subjects, 
but,  if  capable  of  distinguishing  be- 
tween right  and  wrong  in  the  particular 
act  done  by  him,  he  is  justly  liable  to 
be  punished  as  a  criminal.  Such  is 
the  undoubted  rule  of  the  common  law 
on  this  subject.  Partial  insanity  is 
not,  by  that  law,  necessarily  an  excuse 
for  crime,  and  can  only  be  so  where  it 
deprives  the  party  of  his  reason  in  re- 
gard to  the  act  charged  to  be  criminal. 
Nor,  in  my  judgment,  was  tiie  statute 
on  this  subject  intended  to  abrogate  or 
qualify  the  common  law  rule.  The 
words  of  the  statute  are  :  '  No  act  done 
by  a  person  in  a  state  of  insanity  can 
be  punished  as  an  oflence.'  The  clause 
is  very  comprehensive  in  its  terms, 
and  at  first  blush  might  seem  to  ex- 
empt from  punishment  every  act  done 
by  a  person  who  is  insane  upon  any 
subject  whatever.  This  would,  indeed, 
be  a  mighty  change  in  the  law,  as  it 
would  afi'ord  absolute  impunity  to 
every  person  in  an  insane  state,  al- 
though his  disease  might  be  confined 
to  a  single  and  isolated  subject.  If 
this  is  the  meaning  of  the  statute, 
jurors  are  no  longer  to  inquire  whether 
the  party  was  insane  '  in  respect  to  the 
very  act  with  which  he  is  charged,' 
but  whether  he  was  insane  in  regard 
to  any  act  or  subject  whatever  ;  and, 
if  they  find  such  to  have  been  his  con- 
dition, render  a  verdict  of  not  guilty. 
But  this  statute  is  not  so  understood 

137 


§  146,]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

tenced  to  imprisonment  for  six  years.  On  an  application  to  the 
court  to  reconsider  the  sentence,  insanity  Avas  set  up,  and  it  ap- 
peared that  the  prisoner  either  felt  or  feigned  a  belief  that  he 
was  a  legitimate  son  of  the  late  Duke  Charles  of  Mecklenburg 
Strelitz  ;  which  certainly,  if  not  a  mere  fiction,  was  an  insane 
delusion.  Much  reason  existed  to  believe  that  the  whole  thing  was 
simulated  ;  but,  independently  of  this,  the  court  was  clear  that,  as 
the  mania,  if  real,  had  no  connection  with  his  crime,  it  formed  no 
ground  for  a  revision  of  the  sentence.^ 

3.    Where  the  de.fendant,  being  insane,  is  forced  hy  a  morbid  and 
irresistible  impulse  to  do  the  particular  act. 

\^As  to  the  alleged  ''^ monomaniac''^  impulses,  see  infra,  §§  567-679. 
As  to  the  question  of  motive,  infra,  §§  401-404.] 

§  146.  Here,  at  the  outset,  we  are  arrested  by  a  difficulty  of 
Irresistible  nomenclature.  What  is  "  irresistible  impulse"  that  is 
disti'nct  ^®^®  declared  to  be  a  defence  ?  And,  in  order  to  clear 
from  moral    ^j^e  question  at  the  outset  from  ambiguities,  it  is  proper 

insanity  '-  o  /  x       x 

and  pas-        to  remark — 

(a)  "  Irresistible  impulse"  is  not  "  moral  insanity," 
defining  "  moral  insanity"  to  consist  of  insanity  of  the  moral  system, 
coexisting  with  mental  sanity.  "Moral  insanity,"  as  thus  defined, 
has  no  support,  as  will  hereafter  be  seen,^  either  in  psychology 
or  law. 

(J)  Nor  is  "irresistible  impulse"  convertible  with  passionate 
propensity,  no  matter  how  strong,  in  persons  not  insane.^  In  other 
words,  the  "  irresistible  impulse"  of  the  lunatic,  which  confers  irre- 
sponsibility, is  essentially  distinct  from  the  passion,  however  violent, 
of  the  sane,  which  does  7iot  confer  irresponsibility.     As  this  dis- 

byme.     I  interpret  it  as  I  sliould  have  since,  I  am  not  aware  that  it  Las,  at 

done  if  the  words  had  been,   'no  act,  any  time,  been  held  or  intimated  by 

done  by  a  person  in  a  state  of  insanity  any  judicial  tribunal,  that  the  statutje, 

in  respect  to  such  act,  can  be  punished  had  abrogated,  or  in  any  respect  modi- 

as  an  offence.'     The  act,  in  my  judg-  tied,  this  principle  of  the  common  law." 

ment,  must  be  an  insane  act,  and  not  Freeman  v.  People,  4  Deuio,  p.  27. 

merely  the  act  of  an   insane   person.  '  See  appendix  to  3d  ed.  of  this  work. 

This  was  plainly  the  rule  before  the  §  834. 

statute  was  passed,  and,  although  that  ^  Infra,  §§  163-189,  531-567. 

took   place   more   than   sixteen   years  '  See  infra,  §§  403—478. 

138 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  147. 

tinction  is  of  great  importance,  we  will  now  notice  the  reason  on 
which  it  rests. 

§  147.  (1)  Supposing  the  mind  to  be  sane,  and  that  there  is  a 
capacity  of  judging  between  right  and  wrong,  there  is 
psychologically  no  impulse  which  the  law  can  treat  as  sane  no 
irresistible.  The  will  is  either  free,  which  settles  the  |™esistibie 
question  at  once  ;  or  it  is  directed  by  the  strongest  motives, 
as  the  necessitarian  holds.  Now,  taking  the  latter  hypothesis,  the 
question  arises,  supposing  the  will  to  follow  by  necessity  the 
strongest  motive,  whether  it  is  just  to  punish  the  wrong-doer  for 
such  necessary  act.  That  it  is,  is  affirmed  by  the  leading  repre- 
sentatives of  the  necessitarian  school.  "  It  is  said,"  says  Mr.  Bain,^ 
"  that  it  would  not  be  right  to  punish  a  man  unless  he  were  a  free 
agent ;  a  truism,  if  by  freedom  is  meant  only  the  absence  of  out- 
ward compulsion  ;  if  in  any  other  sense,  a  piece  of  absurdity.  If 
it  is  expedient  to  place  restrictions  upon  the  conduct  of  sentient 
beings,  and  if  the  threatening  of  pain  operates  to  arrest  such  con- 
duct, the  case  for  punishment  is  made  out.  We  must  justify  the 
institution  of  law,  to  begin  with,  and  the  tendency  of  pain  to  pre- 
vent the  actions  that  bring  it  on,  in  the  next  place.  .  .  .  Grant- 
ing these  two  postulates,  punishability  (carrying  with  it,  in  a  well 
constituted  society,  responsibility),  is  amply  vindicated. 
Withdraw  the  power  of  punishing,  and  there  is  left  no  conceivable 
instrument  of  moral  education.  It  is  true  that  a  good  moral  disci- 
pline is  not  wholly  made  up  of  punishment ;  tlie  wise  and  benevolent 
parent  does  something,  by  the  methods  of  allurement  and  kindness, 
to  form  the  virtuous  dispositions  of  his  child.  jStill,  we  may  ask, 
was  ever  any  human  being  educated  to  the  se7ise  of  right  and  wrong 
without  the  dread  of  pain  accojiipanying  forbidden  actions?  It 
may  be  affirmed  with  safety,  that  punishment  or  retribution,  in  some 
form,  is  one-half  of  the  motive  power  to  virtue  in  the  very  best  of 
human  beings,  while  it  is  more  than  three-fourths  in  the  mass  of 
mankind."  Now,  erroneous  as  is  Mr.  Bain's  position  that  the  pri- 
mary ground  of  punishment  is  prevention  to  be  effected  by  fear,^ 
there  can  be  no  question  that  on  the  necessitarian  hypothesis  his 
reasoning  is  sound. 

'  Mental  and  Moral  Science,  London,         *  gee  this  shown  in  Wh.  Cr.  L.  8th 
1868,  p.  404  ed.  §§  1  et  seq. 

139 


§  149.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

§  148.  Mr.  J.  S.  Mill,  in  his  examination  of  Sir  W.  Hamilton's 
philosophy,  supposes  the  case  of  a  race  of  men  whose 
mentneces-  hereditary  tendencies  to  mischief  are  as  great  and  uncon- 
ven^  crime'  ^rollable  as  those  of  lions  and  tigers  ;  than  which  no  case 
brought  up  by  the  advocates  of  the  unpunishability  of 
those  subject  to  irresistible  propensities  could  be  more  strong. 
Having  supposed  such  men,  he  asks  whether  we  would  not  treat 
them  precisely  as  we  would  a  wild  beast,  even  though  we  supposed 
them  to  act  necessarily.  The  highest  theory  of  fatalism,  he  infers 
from  this,  is  not  inconsistent  with  the  infliction  of  penalties  on  the 
offender.  The  question  that  arises,  then,  is,  is  such  punishment 
just  ?  Can  we  justly  punish  a  man  for  that  which  he  cannot  help  ? 
And  he  argues  that  we  certainly  can,  if  announcing  beforehand  that 
such  offenders  are  to  be  punished,  and  supporting  the  announce- 
ment by  inflexible  and  uniform  execution,  is  the  way  to  keep  them 
from  committing  the  obnoxious  act.  If  the  end — the  prevention  of 
crime — is  justifiable,  then  the  necessary  means  for  the  prevention 
of  crime  are  also  justifiable.  And  despotic  as  is  the  assumption 
that  punishment  is  to  be  inflicted,  not  as  a  matter  of  justice  in 
obedience  to  a  preannounced  law,  but  as  a  matter  of  policy  irre- 
spective of  deserts,  the  conclusion  legitimately  follows  from  Mr. 
Mill's  premises. 

§  149.  In  cases  of  low  mental  and  moral  culture,  such  as  those 
Fear  ^^^^  Supposed,  the  will,  when  on  the  brink  of  some  for- 

check  on      bidden  act,  is  swayed  by  two  conflicting  motives,  passion 

passion.  .  . 

and  tear,  i^ear,  m  such  cases,  is  the  only  check  on  pas- 
sion. If  it  is  removed,  passion  has  no  remaining  barrier  in  its  way. 
We  may  notice  this  in  the  case  of  young  children,  who  are  often 
deterred  from  wrong  acts  in  proportion  as  the  fear  of  punishment 
is  impressed  on  their  minds.  Nor  does  this  characteristic  belong 
only  to  children  or  to  persons  of  low  grade  of  intelligence.  It  was 
frequently  said  of  Napoleon  I.,  and  of  General  Jackson,  that  each 
knew  when  he  could  with  impunity  give  way  to  bursts  of  apparently 
irresistible  rage ;  but  that  each  knew  when  this  rage  was  to  be  con- 
trolled. The  cases  are  not  infrequent  in  which  men,  presuming  on 
the  cowardice  or  feebleness  of  their  intended  victim,  rush  into 
violence  which  they  would  readily  have  restrained  had  they  known 
that  they  would  have  received  blow  for  blow.  Wer  sicJi  zuni  Schaf 
macht,  is  a  German  proverb,  denfrisst  der  Wolf ;  or,  as  we  may 
140 


INSANITY    AS    A   DEFENCE    TO   CHARGE    OF   CRIME.       [§  150. 

paraphrase  it,  government,  by  becoming  a  sheep,  creates  the  social 
wolf.  The  state  which  declares  that  no  irrepressible  passion  shall 
be  punished  evokes  the  irrepressible  passion  it  exempts.  Fear  is  a 
salutary  check  on  passion ;  and  punishment  must  be  applied  by 
government  with  such  even  hand  that  fear  will  be  real  and  reason- 
able. Of  course,  as  Mr.  Mill  well  remarks,  this  does  not  apply  to 
cases  where  the  offender  has  not  reason  to  understand  that  the 
guilty  act  is  punished  by  the  state,  nor  does  it  apply  when  he  is 
laboring  under  an  insane  delusion  which  sets  up  what  he  holds  to 
be  a  higher  law. 

&  150.    (2)  There  is  no  means  of  determining  what   Irresisti- 

^  ^    ^  .        ,,  -rr.  ^  bilitj  im- 

constitutes    "-irresistibility.   ^      If    a    man    has    reason    possible  to 
enough  to  deplore  a  criminal  desire,  and  power  enough 


1  "Irresistible  impulses"  are  recog- 
nized by  all  philosophers,  profane  and 
sacred.     Ovid,    in   a  well-known  pas- 
sage, thus  speaks  : — 
Sed  trahit  invitam   nova   vis,   aliudque 

cupido. 
Mens  aliud  suadet :  video  meliora  pro- 

boque, 
Deteriora  sequor. 

And  so  St.  Paul :  "  The  good  that  I 
would  I  do  not ;  but  the  evil  which  I 
would  not,  that  I  do.  .  .  1  see  another 
law  in  my  members,  warring  against 
the  law  of  my  mind,  and  bringing  me 
into  captivity  to  the  law  of  sin  which 
is  in  my  members."  No  doubt  the 
impulse,  viewed  thus  as  an  insulated 
force,  is  irresistible  in  producing  the 
sin.  But,  on  the  other  hand,  reason, 
in  its  right  sense,  is  irresistible  in  sup- 
pressing the  impulse.  Reason  may  ope- 
rate either  through  love  or  fear  ;  and 
hence  it  is  incumbent  on  all  systems 
of  ethics  to  cherish  these  motives.  No 
doubt  it  is  a  law  of  our  nature  that  the 
will  follows  the  strongest  motive.  But 
the  irresistibility  of  the  inferior  motive, 
when  unrestrained,  is  the  crowning 
reason  for  promulgating  and  enforcing 
superior  motives,  as  modes  of  restrain- 
ing. 


Griesinger  doubts  whether  impulses 
are  irresistible  even  among  the  insane. 
"  Whether,  and  to  what  extent,  certain 
directions  of  the  will  and  impulses  in 
the  insane,  particularly  such  as  lead  to 
criminal  acts,  are  irresistible,  is  a  ques- 
tion which  can  scarcely  ever  be  an- 
swered with  certainty.  Few  of  the  acts 
of  the  insane  have  the  character  of 
forced,  purely  automatic  movements  ; 
in  mania  also,  according  to  the  testi- 
mony of  individuals  who  have  recovered, 
many  of  the  wild  desires  could  often  be 
restrained  ;  the  criminal  deeds  of  the 
insane  are  not  generally  instinctive. 
The  loss  of  freewill  (or,  if  we  choose, 
irresponsibility),  therefore,  seldom  de- 
pends on  the  fact  of  inability  to  have 
abstained  from  the  act  committed,  or 
that  the  normal  conditions  of  volition 
have  been  completely  suspended.  The 
causes  of  this  loss  of  freewill  chiefly 
depend  on  quite  a  different  cause,  they 
depend  on  violent  excitation  of  the 
emotions,  or  on  incoherence,  on  false 
reasoning  proceeding  from  delirious 
conceptions,  hallucinations,  etc.,  and 
on  the  circumstances  mentioned  in  § 
27." — Griesinger^  s  Mental  Pathology, 
Sydenham  Ed.  (1867),  §  47. 

2  See  infra,  §  585. 

141 


§  151.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

to  take  steps  to  prevent  its  gratification,  the  law  holds  him  re- 
sponsible if  he  does  not  take  such  steps.  This  is  recognized  in 
those  familiar  cases  in  which  it  is  held,  that,  where  a  man  whose 
passions  are  aroused  kills  an  assailant,  the  act  is  not  excusable 
unless  it  appears  that  the  accused  had  no  means  of  retreat.  If  the 
"  monomaniac"  can  retreat  from  his  "  monomania,"  it  ceases  to 
supply  him  with  a  defence. 

§  150  a.    (3)  On  the  materialistic  hypothesis,  from  whose  advo- 
cates the  theory  of  the  non-responsibility  for  irresistible 
ti(f theory"    impulses  Springs,  all  volitions  are  the  result  of  material 
of  volition     influences ;  and  hence  there  is  no  volition  that  may  not 

incorrect.  ...  .  . 

be  viewed  as  irresistible,  and  no  crime  that  is  not  a  phy- 
sical disease.  But  the  answer  is,  that  the  same  reasoning  that  ap- 
plies to  prevent  punishment  for  any  particular  crime  would  apply  to 
prevent  punishment  for  any  crime  whatsoever. 

§  151.  It  should  be  remembered,  however,  that  while  "  irresisti- 
ble impulse,"  the  mind  being  sane,  is  no  defence  to  crime, 
Passion  is  a  .        .  ,  ,  . 

mitigating  yet  Violent  passion  is  to  be  taken  into  account  as  a  miti- 
e  emea  .  gating  element,  and  that  the  peculiar  temperament  of 
the  ofl"ender  is  to  be  gauged  for  the  purpose  of  estimating  whether 
the  provocation  was  such  as  to  create  hot  blood,  and  whether  there 
was  adequate  cooling  time.  A  sane  person  may,  from  epilepsy,  or 
from  prior  insanity,  or  from  nervous  or  physical  derangements,  or 
from  hereditary  taint,  be  peculiarly  susceptible  to  excitement ;  and, 
as  the  law  treats  assaults  committed  in  hot  blood  as  of  a  lower 
grade  than  those  committed  deliberately,  this  excitability  may  pro- 
perly be  considered  in  determining  whether  the  blood  at  the  time 
was  hot.  That,  psychologically,  this  varies  with  temperament  is 
well  known.  The  ordinary  signs  of  passion  (acceleration  of  arterial 
pulse,  congestive  flushings,  increased  activity  of  secretions  and 
excretions)  are  diiferent  with  difl"erent  patients.  Hence  epileptic, 
nervous,  and  cerebral  diseases,  and  hereditary  tendency,  may  be 
put  in  evidence  to  lower  the  grade  of  the  ofience,  though  they  do 
not  amount  to  insanity.  In  so  doing,  we  but  follow  the  authorities 
which  declare  that  drunkenness,  though  no  defence  to  crime,  may 
be  used  to  show  that  an  assault  was  not  deliberate.^ 

'  Supra,  §   122;    infra,  §   200;    Wh.     "monomaniac"     impulses,     infra,     §§ 
Cr.  L.  8th  ed.  §  47  ;   see,  as  to  alleged    567-679, 

142 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OP   CRIME.       [§  152. 

§  152.  It  being  therefore  settled  that  "  irresistible  impulse,"  to 
constitute  a  defence,  must  be  that  of  a  person  otherwise  ^^tijoj-jtigg 
insane,  we  proceed  to  consider  the  authorities  that  estab-  for  defence 
lish  such  impulse,  under  such  conditions,  as  a  defence,  tibieim- 
In  doing  so,  it  must  be  at  the  outset  conceded  that,  by  ^"  ^^* 
the  English  courts,  this  defence,  as  here  stated,  is  rejected.  No 
person,  however  insane,  can,  by  the  law*as  now  (1882)  expounded 
by  those  courts,  be  acquitted  of  a  crime,  if  it  appear  to  the  satis- 
faction of  the  jury  that  he  knew  the  nature  and  quality  of  the  act 
he  was  doing,  or,  if  he  did  not  know  it,  if  he  knew  that  the  act  was 
wrong.^  But,  if,  as  hereafter  will  be  shown,  it  is  demonstrable 
that  there  sometimes  is,  among  insane  persons,  an  "  irresistible 
impulse"  to  an  act  coexisting  with  a  knowledge  that  it  was  wrong, 
then  comes  the  question  whether  lunatics  of  this  stamp  are  legally 
punishable  for  such  acts.  That  they  are  not,  the  tendency  of 
American  authority  is  to  maintain.  And  even  in  England  we  find 
Mr.  Stephen,  in  his  work  on  English  Criminal  Law^ — a  work  as 
remarkable  for  philosophical  symmetry  as  for  legal  accuracy — 
stating  (1863)  the  questions  to  be,  "  in  popular  language.  Was  it 
his  act?  Could  he  help  it?  Did  he  know  it  was  wrong ?''^  He 
goes  on  further  to  say :  "  It  would  be  absurd  to  deny  the  possi- 
bility that  such  (irresistible)  impulses  may  occur,  or  the  fact  that 
they  have  occurred,  and  have  been  acted  on.  Instances  are  also 
given  in  which  the  impulse  was  felt  and  was  resisted.  The  only 
question  which  the  existence  of  such  impulses  can  raise  in  the 
administration  of  criminal  justice  is,  whether  the  particular  impulse 
in  question  was  irresistible  as  well  as  unresisted.     If  it  were  iri-e- 

'  A  mere  uncontrollable  impulse  of  fit,  though  there  is  nothing  before  or 

the  mind,  coexisting  with  the  full  pes-  after  the  act  to  indicate  it,  and  though 

session  of  the  reasoning  powers,  will  there  is  some  evidence  of  design  and 

not  warrant  an  acquittal  on  the  ground  malice.     R.  v.  Richards,  1  F.  &  F.  87. 

of  insanity  ;  the  question  for  the  jury  The  circumstance  of  a  person  hav- 

being,    whether    the   prisoner,  at   the  ing  acted  under  an  irresistible  intlu- 

time  he  committed  the  act,  knew  the  ence  to  the  commission   of  homicide  is 

character  and  nature  of  the  act,  and  no  defence,  if  at  the  time  he  committed 

that   it   was   a   wrongful   one.     R.   v.  the  act  he  knew  he  was  doing  what 

Barton,  3  Cox,  C.  C.  275 — Parke.  was  wrong.     R.  v.  Haynes,  1  F.  &  F. 

Where  a  person  is  in  a  state  of  mind  666^Bramwell.     See  also   Edmunds's 

in  which  she  is  liable  to  fits  of  mad-  case,  infra,  §§  165-167. 

ness,  it  is  for  the  jury  to  consider  whe-  *  London,  1863,  p.  91. 
ther  the  act  done  was  during  such  a 

143 


§  153.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

sistible,  the  person  accused  is  entitled  to  he  acquitted,  because  the 
act  was  not  voluntary  and  was  not  properly  his  act.  If  the 
impulse  was  resistible,  the  fact  that  it  proceeded  from  disease  is  no 
excuse  at  all."^ 

§  153.  To  the  illustrations  adduced  by  others  of  the  coexistence 
Instances  ^^  ^  knowledge  that  an  act  was  wrong  with  its  commis- 
ofirrespon-   g^Qjj  under  circumstances  which  confer  entire  irresponsi- 

sibility  CO-         _  _  ^  _  * 

existing  hility,  the  present  writer  may  be  permitted  to  add  one 
conscious-  within  the  range  of  his  own  experience.  A  man  named 
°^^®"  John  Billman,  Avho  had  been  sent  to  the  Eastern  Peni- 

tentiary of  Pennsylvania  for  horse  stealing,  murdered  his  keeper 
under  circumstances  of  great  brutality,  and  yet  with  so  much  inge- 
nuity as  to  elude  suspicions  of  his  intentions  and  almost  conceal  his 
flight.  He  hung  a  noose  on  the  outside  of  the  small  window  which 
is  placed  in  the  door  of  the  cells  to  enable  persons  outside  to  look 
in.  He  then  induced  the  keeper,  in  order  to  look  at  something  on 
the  floor  directly  at  the  foot  of  the  door,  to  put  his  head  entirely 
through.  The  noose  was  then  drawn,  and  but  for  an  accident  the 
man  would  have  been  sufi"ocated.  Notwithstanding  this  attempt, 
the  same  keeper  was  inveigled  into  the  cell  alone,  a  few  days  after- 
wards, on  the  pretence  of  Billman  being  sick,  and  was  there  killed 
by  a  blow  on  the  head  with  a  piece  of  washboard.  Billman  un- 
dressed him,  changed  clothes  with  him,  placed  him  on  the  bed  in 
such  a  position  as  to  induce  the  general  appearance  of  his  being 
there  himself,  traversed  in  his  assumed  garb  the  corridor  with  an 
unconcerned  air,  addressed  an  apparently  careless  question  to  the 
gate-keeper,  and  sauntered  listlessly  down  the  street  on  which  the 
gate  opened.  He  Avas,  however,  soon  caught ;  but  his  insanity  was 
so  indisputable  that  the  prosecuting  authorities,  after  having  insti- 
tuted a  careful  and  skilful  medical  examination,  became  convinced 
of  his  irresponsibility,  and  united  upon  the  trial  in  asking  a  verdict 
of  acquittal  on  the  ground  of  insanity.  He  was  then  remanded  to 
confinement,  under  the  Pennsylvania  practice  ;  and  some  time  after- 
wards, when  in  a  communicative  mood,  disclosed  the  fact  of  his 
having  several  years  back  murdered  his  father  under  circumstances 

'  See  McFarland's  case,  8  Abb.  N.     Committee   the   same   view   is    taken. 
Y.  Pr.  N.  S.  57.     In   Sir  J.  Stephen's    Wh.  Cr.  L.  8th  ed.  §  45. 
testimony  before  the  English  Homicide 

144 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  156. 

Avhich  he  detailed  with  great  minuteness  and  zest.  Inquiries  were 
instituted,  and  it  was  found  that  he  had  told  the  truth.  The  father 
had  been  found  strangled  in  his  bed  ;  the  son  had  been  arrested 
for  the  crime  ;  but  so  artfully  had  he  contrived  the  homicide  that 
he  was  acquitted  through  an  alibi,  got  up  by  means  of  a  rapid  ride 
at  midnight  and  a  feigned  sleep  in  a  chamber  into  which  he  had 
clambered  by  a  window.  Here,  then,  was  not  only  a  sense  of 
guilt,  but  a  keen  appreciation  of  the  consequences  of  exposure,  long 
harbored  intention,  and  intelligent  design. 

§  154.  A  well-known  illustration  of  the  same  sense  of  accounta- 
bility among  lunatics,  as  a  class,  is  to  be  found  in  an  anecdote 
related  by  Dr.  Winslow.  When  Martin  set  York  Minster  on  fire, 
a  conversation  took  place  among  the  inmates  of  a  neighboring  lunatic 
asylum,  having  reference  to  this  general  topic.  The  question  was 
whether  Martin  would  be  hanged,  when,  in  the  course  of  the  con- 
versation, one  madman  announced  to  the  others  the  opinion,  in  which 
they  all  acquiesced,  that  Martin  would  not  be  hanged,  because  he 
was  "  one  of  themselves."  It  certainly  will  not  be  maintained  that 
a  consciousness  of  the  legal  relations  of  crime,  such  as  this  remark 
exhibited,  confers  responsibility  where  it  does  not  otherwise  exist. 

§  156.  With  these  may  be  cited  a  leading  case  before  Judge 
Story,  in  which  that  eminent  jurist  directed  the  acquittal  of  a  young 
Avoman,  who  during  puerperal  insanity  drowned  her  child,  though 
there  was  no  proof  that  she  was  not  entirely  conscious  of  the  nature 
of  the  act.^ 

In  the  same  class  fall  those  cases  in  which  a  parent,  insane  with 
melancholy,  kills  his  children,  either  in  execution  of  some  supposed 
divine  command,  or  to  save  them  from  supposed  future  misery, 
knowing  at  the  same  time  the  illegality  of  the  act.^ 

§  156.  The  first  case  in  which  this  question  was  gravely  con- 
sidered is  that  of  Commonwealth  v.  Rogers,  before  the    ^  .  . 

°    ,  Opinion  of 

supreme  court  of  Massachusetts,  in  the  spring  of  1844.3    Cbief  Jus- 
Chief  Justice  Shaw — whose  conservative  tendencies  on 
the  great  sanctions  of  human  life  cannot  be  suspected — found  him- 
self, in  preparing  his  charge,  embarrassed  by  the  conflict  between 

1  U.  S.  V.  Hewson,  7  Bost.  L.  R.  361.        »  7  Mete.  500. 

2  Supra,  §§  132,  137  ;  infra,   §§   529, 
582,  636,  837,  839. 

VOL.  I.— 10  145 


§  156.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

the  dogmas  of  the  older  judges  and  the  necessities  of  the  particular 
case  ;  and  there  is  an  evident  struggle  on  his  part  to  preserve  as 
much  as  he  could  of  the  letter  of  the  former  and  at  the  same  time 
to  establish  a  principle  hj  which  the  latter  could  be  properly  re- 
spected. He  begins — we  cite  from  the  authorized  report — by  lay- 
ing down  two  propositions  of  great  breadth.  "  In  order  to  consti- 
tute a  crime,"  he  says,  "  a  person  must  have  intelligence  and- 
capacity  enough  to  have  a  criminal  intent  and  purpose  ;  and,  if  his 
reason  and  mental  powers  are  either  so  deficient  that  he  has  no  will, 
no  conscience,  or  controlling  mental  power,  or  if,  through  the  over- 
whelming violence  of  mental  disease,  his  intellectual  power  is  for 
the  time  obliterated,  he  is  not  a  responsible  moral  agent,  and  is  not 
punishable  for  criminal  acts.  These  extremes,"  he  then  proceeds 
to  state,  "  are  easily  distinguished,  and  not  to  be  mistaken.  The 
difficulty  lies  between  these  extremes,  in  the  cases  of  partial  insanity, 
where  the  mind  may  be  clouded  and  weakened,  but  not  incapable 
of  remembering,  reasoning,  and  judging  ;  or  so  perverted  by  insane 
delusion,  as  to  act  under  false  impressions  and  influences,"  To 
such  cases — to  those  where  the  mind  is  not  "  incapable  of  judging," 
etc.,  and  to  those  where  it  acts  "  under  false  impressions  and  influ- 
ences"— and  to  such  alone,  he  applies  the  "  right  and  wrong"  test; 
reserving  it  to  a  very  small  sphere  of  action,  since  the  defence  of 
insanity  would  scarcely  be  ventured  where  there  Avas  both  a  capa- 
city to  judge,  reason,  and  remember,  and  a  freedom  from  false 
"  impressions  and  influences."  Taking  up  the  particular  defence 
of  monomania,  which  was  that  advanced  in  the  case  before  him,  he 
proceeds  to  state  the  law,  with  a  liberality  in  entire  accordance  with 
the  weight  of  medical  authority.  "  Tbis"  (monomania)  "  may 
operate  as  an  excuse  for  a  criminal  act  in  one  of  two  modes.  1. 
Either  the  delusion  is  such  that  the  person  under  its  influence  has 
a  real  and  firm  belief  of  some  fact,  not  true  in  itself,  but  which,  if 
it  were  true,  would  excuse  his  act:  as  where  the  belief  is  that  the 
party  killed  had  an  immediate  design  upon  his  life,  and  under  that 
belief  the  insane  man  kills  in  supposed  self-defence.  A  common 
instance  is  where  he  fully  believes  that  the  act  he  is  doing  is  done 
by  the  immediate  command  of  God,  and  he  acts  under  the  delusive 
but  sincere  belief  that  Avhat  he  is  doing  is  by  the  command  of  a 
superior  power  which  supersedes  all  human  laws  and  the  laws  of 
nature.  2.  Or  this  state  of  delusion  indicates  to  an  experienced 
146 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  157. 

person  that  the  mind  is  in  a  diseased  state  ;  that  the  known  ten- 
dency of  that  diseased  state  of  the  mind  is  to  break  out  into  sudden 
paroxysms  of  violence,  venting  itself  in  homicide,  or  other  violent 
acts  toward  friend  and  foe  indiscriminately  ;  so  that,  although  there 
were  no  previous  indications  of  violence,  yet  the  subsequent  act, 
connecting  itself  with  the  previous  symptoms  and  indications,  will 
enable  an  experienced  person  to  say,  that  the  outbreak  was  of  such 
a  character  that,  for  the  time  being,  it  must  have  overborne  memory 
and  reason  ;  that  the  act  was  the  result  of  the  disease  and  not  of  a 
mind  capable  of  choosing  ;  in  short,  that  it  was  the  result  of  uncon- 
trollable impulse,  and  not  of  a  person  acted  on  by  motives,  and 
governed  by  will."  .  .  .  "Are  the  facts  of  such  a  character, 
taken  in  connection  with  the  opinion  of  professional  witnesses,  as 
to  induce  the  jury  to  believe  that  the  accused  was  laboring  for  days 
under  monomania,  attended  with  delusion,  and  did  thus  indicate 
such  a  diseased  state  of  the  mind,  that  the  act  of  killing  the  warden 
was  to  be  considered  an  outbreak  or  paroxysm  of  disease,  which  for 
the  time  being  overwhelmed  and  superseded  reason  and  judgment, 
so  that  the  diseased  was  not  an  accountable  agent  ?  If  such  was 
the  case,  the  accused  is  entitled  to  an  acquittal," 

§  157.  In  the  fall  of  1846.,  a  similar  defence  was  started  before 
three  of  the  judges  of   the  supreme  court  of  Pennsyl- 
vania,  then  holding  an  oyer  and  terminer  in  Philadelphia.    Justice 
In  his  charge  to  the  jury,  Chief  Justice  Gibson — a  most 
able  judge,  thoroughly  disciplined  in  and  wedded  to  the  common  law, 
but  at  the  same  time  endowed  with  a  remarkable  zest  for  and  a 
mastery  over  collateral  sciences — after,  in  the  first  place,  vehemently 
repudiating  the  doctrine  that  partial  insanity  excuses  anything  but 
its  direct  results,  and  sliding,  in  reference  to  such  cases,  into  the 
"  right  and  wrong"  tests,  proceeds  :  "  But  there  is  a  moral  or  homi- 
cidal insanity,  consisting  of  an  irresistible  inclination  to  kill  or  to 
commit  some  particular  offence.^     There  may  be  an  unseen  ligament 
pressing  on  the  mind,  drawing  it  to  consequences  which  it  sees  hut 
cannot  avoid,  and  placing  it  under  a  coercion  which,  while  its  re- 
sults are  clearly  perceived,  is  incapable  of  resistance.     The  doctrine 

'  The  charge  was  oral,  having  been  which  may  account  for  the  want  of 
reported  by  the  present  writer,  and  but  literal  exactness  in  this  and  other  ex- 
hastily  revised  by  the  judge  himself,     pressions. 

147 


§  158.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

which  acknowledges  this  mania  is  dangerous  in  its  relations,  and 
can  be  recognized  only  in  the  clearest  cases.  It  ought  to  be  shown 
to  have  been  habitual,  or  at  least  to  have  evinced  itself  in  more 
than  a  single  instance.  It  is  seldom  directed  against  a  particular 
individual ;  but  that  it  may  be  so,  is  proved  by  the  case  of  a  young 
woman  who  was  deluded  by  an  irresistible  impulse  to  destroy  her 
child,  thougJi  aware  of  the  heinous  nature  of  the  act.  The  fre- 
quency of  this  constitutional  malady  is  fortunately  small,  and  it  is 
better  to  confine  it  within  the  strictest  limits.  If  juries  were  to 
allow  it  as  a  general  motive,  operating  in  cases  of  this  character, 
its  recognition  would  destroy  social  order  as  well  as  personal  safety. 
To  establish  it  as  a  justification  in  any  particular  case,  it  is  neces- 
sary either  to  show,  by  clear  proofs,  its  contemporaneous  existence 
evinced  by  present  circumstances,  or  the  existence  of  an  habitual 
tendency  developed  in  previous  cases,  becoming  in  itself  a  second 
nature."^ 

§  158.  In  a  still  earlier  case  in   Pennsylvania,  Judge   Lewis, 

then  presiding  in  Lycoming  county,  and  afterwards  Chief 
Lewis.  ^^      Justice  of  Pennsylvanvia,  thus  spoke  :  "  Moral  insanity" 

(not,  however,  the  moral  insanity  of  Pinel,  but  that  which 
consists  of  "irresistible  impulse")  "arises  from  the  existence  of 
some  of  the  natural  propensities  in  such  violence  that  it  is  impossi- 
ble not  to  yield  to  them.  It  bears  a  striking  resemblance  to  vice, 
which  is  said  to  consist  in  an  undue  excitement  of  the  passions  and 
will,  and  in  their  irregular  or  crooked  actions  leading  to  crime. 
It  is  therefore  to  be  received  with  the  utmost  scrutiny.  It  is  not 
generally  admitted  in  legal  tribunals  as  a  species  of  insanity  which 
relieves  from  responsibility  for  crime,  and  it  ought  never  to  be 
admitted  as  a  defence,  until  it  is  shown  that  these  propensities  exist 
in  such  violence  as  to  subjugate  the  intellect,  control  the  will,  and 
render  it  impossible  for  the  party  to  do  otherwise  than  yield. 
Where  its  existence  is  fully  established,  this  species  of  insanity  re- 
lieves from  accountability  to  human  laws.  But  this  state  of  mind 
is  not  to  be  presumed  without  evidence,  nor  does  it  usually  occur 
without  some  premonitory  symptoms  indicating  its  approach."^ 

1  Com.  V.  Mosler,  4  Penn.  St.  264;  and  able  judge;  Lewis  Cr.  Law,  404; 
see  infra,  §  174.  by  Judge  Edmonds  (2  Am.  Jour,  of  Ins.) 

2  The  same   view  was,   some  years  and  Judge  Whiting  (Freeman's  Trial 
after,  repeated  by  the  same  enlightened  — Pamph.).     In  1858,  in  John  Freeth's 

148 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  159. 

§  159.    In  Illinois,  in  1863,  it  was  declared  by  the  supreme 
court"  that   a   safe  and  reasonable  test  would  be,  that,  whenever 


case,  tried  before  the  Philadelphia  oyer 
and  terminer,  Judge  Ludlow  charged 
the  jury  partly  as  follows  : — 

"Besides  the  kinds  of  insanity  to 
which  I  have  already  referred,  and 
which  strictly  speaking  affect  the  mind 
only,  we  have  moral  or  homicidal  in- 
sanity, which  seems  to  be  an  irresistible 
inclination  to  kill,  or  to  commit  some  other 
particular  offence.  We  are  obliged  by 
the  force  of  atithority  to  say  to  you,  that 
there  is  such  a  disease  known  to  the 
law  as  homicidal  insanity  ;  what  it  is, 
or  in  what  it  consists,  no  lawyer  or 
judge  has  ever  yet  been  able  to  explain 
with  precision  ;  physicians,  especially 
those  having  charge  of  the  insane, 
gradually,  it  would  seem,  come  to  the 
conclusion,  that  all  wicked  men  are 
mad,  and  many  of  the  judges  have  so 
far  fallen  into  the  same  error  as  to  ren- 
der it  possible  for  any  man  to  escape 
the  penalty  which  the  law  affixes  to 
crime. 

"  We  do  not  intend  to  be  understood 
as  expressing  the  opinion  that  in  some 
instances  human  beings  are  not  afflicted 
with  a  homicidal  mania,  but  we  do  in- 
tend to  say  that  a  defence  consisting 
exclusively  of  this  species  of  insanity 
has  frequently  been  made  the  means 
by  which  a  notorious  offender  has 
escaped  punishment.  What,  then,  is 
that  form  of  disease,  denominated  homi- 
cidal mania,  which  will  excuse  one  for 
having  committed  a  murder  ? 

"  Chief  Justice  Gibson  calls  it,  '  that 
unseen  ligament  pressing  on  the  mind, 
and  drawing  it  to  consequences  which 
it  sees  but  cannot  avoid,  and  placing  it 
under  a  coercion  which,  while  its  results 
are  clearly  perceived,  is  incapable  of 
resistance' — '  an  irresistible  inclination 
to  kill.' 

"  If  by  moral  insanity  it  is  to  be  un- 


derstood only  a  disordered  or  perverted 
state  of  the  affections  or  moral  powers 
of  the  mind,  it  cannot  be  too  soon  dis- 
carded as  affording  any  shield  from 
punishment  for  crime ;  if  it  can  be 
truly  said  that  one  who  indulges  in 
violent  emotions,  such  as  remorse, 
anger,  shame,  grief,  and  the  like,  is 
afflicted  with  homicidal  insanity,  it 
will  be  difficult,  yes,  impossible,  to  say 
where  sanity  ends  and  insanity  begins  ; 
for,  by  way  of  illustration,  the  man 
who  is  lashed  into  fury  by  a  fit  of  anger 
is  in  one  sense  insane. 

"As  a  general  rule  it  will  be  found 
that  instances  are  rare  of  cases  of  homi- 
cidal insanity  occurring  wherein  the 
mania  is  not  of  a  general  nature,  and 
results  in  a  desire  to  kill  any  and  every 
person  who  may  chance  to  fall  within 
the  range  of  the  maniac's  malevolence  ; 
as  it  is  general,  so  also  is  it  based  upon 
imaginary  and  not  real  wrongs  ;  if  it  is 
directed  against  a  particular  person  (as 
is  sometimes  the  case),  then  also  the 
cause  of  the  act  will  generally  be  im- 
aginary ;  when,  therefore,  the  jury  find 
from  the  evidence  that  the  act  has  not 
been  the  result  of  an  imaginary  but 
real  wrong,  they  will  take  care  to  ex- 
amine with  great  caution  into  the  cir- 
cumstances of  the  case,  so  that  with 
the  real  wrong,  they  may  not  also  dis- 
cover revenge,  anger,  and  kindred 
emotions  of  the  mind  to  be  the  real 
motive  which  has  occasioned  the  homi- 
cidal act. 

"Orfilahas  said,  'that  the  mind  is 
always  greatly  troubled  when  it  is  agi- 
tated by  anger,  tormented  by  an  un- 
fortunate love,  bewildered  by  jealousy, 
overcome  by  despair,  haunted  by  ter- 
ror, or  corrupted  by  an  unconquerable 
desire  for  vengeance.  Then,  as  is  com- 
monly said,  a  man  is  no  longer  master 

149 


§  159.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

Insane  un-    it  should  appear  from  the  evidence  that,  at  the  time  of 
bie  impulse   doing  the  act  charged,  the  prisoner  was  not  of  sound  mind, 


of  himself,  his  reason  is  affected,  his 
ideas  are  in  disorder,  he  is  like  a  mad- 
man. But  in  all  these  cases  a  man  does 
not  lose  his  knowledge  of  the  real 
relations  of  things  ;  he  may  exaggerate 
his  misfortune,  but  this  misfortune  is 
real,  and  if  it  carry  him  to  commit  a 
criminal  act,  this  act  is  perfectly  well- 
motived.' 

"  The  man  who  has  a  clear  concep- 
tion of  the  various  relations  of  life,  and 
the  real  relation  of  things,  is  not  often 
afflicted  with  insanity  of  any  descrip- 
tion. He  may  become  angry,  and  in 
a  fit  of  temper  kill  his  enemy,  or  even 
his  friend,  but  this  is  not,  and  I  hope 
never  will  be,  called  in  courts  of  justice 
insanity.  Again,  one  who  is  really 
driven  on  by  an  uncontrollable  impulse 
to  the  commission  of  a  crime,  will  be 
able  to  show  its  '  contemporaneous 
existence  evinced  by  present  circum- 
stances, or  the  existence  of  an  habitual 
tendency  developed  in  particular  cases, 
and  becoming  in  itself  a  second  nature,' 
and  ought  further  to  show  that  the 
mania  '  was  habitual,  or  that  it  had 
evinced  itself  in  more  than  one  in- 
stance.' 

"Chief  Justice  Lewis  has  said  that 
moral  insanity  '  bears  a  striking  resem- 
blance to  vice;'  and  further,  '  it  ought 
never  to  be  admitted  as  a  defence  until 
it  is  shown  that  these  propensities  exist 
in  such  violence  as  to  subjugate  the 
intellect,  control  the  will,  and  render 
it  impossible  for  the  party  to  do  other- 
wise than  yield.'  And  again,  '  this 
state  of  mind  is  not  to  be  presumed 
without  evidence,  nor  does  it  usually 
occur  without  some  premonitory  symp- 
toms indicating  its  approach.' 

"Gentlemen  of  the  jury,  we  say  to 
you,  as  the  result  of  our  reflections  on 
this  branch  of  the  subject,  that  if  the 

150 


prisoner  was  actuated  by  an  irresistible 
inclination  to  kill,  and  was  utterly  un- 
able to  control  his  will,  or  subjugate 
his  intellect,  and  was  not  actuated  by 
anger,  jealousy,  revenge,  and  kindred 
evil  passions,  he  is  entitled  to  an  ac- 
quittal, provided  the  jury  believe  that 
the  state  of  mind  now  referred  to  has 
been  proven  to  have  existed,  without 
doubt,  and  to  their  satisfaction." — Am. 
Journ.  of  Insan.,  vol.  xv.  p.  303. 

In  Huntington's  case,  the  defendant 
was  tried  in  New  York,  in  1858,  for 
forgery.     Judge  Capron  said  : — 

' '  The  law ,  as  at  present  administered, 
regards  insanity,  whether  general  or 
partial,  as  a  derangement  of  the  mind, 
the  intellect,  the  reasoning  and  ap- 
preciating principle,  the  spring  of 
motives  and  passions.  To  constitute  a 
complete  defence,  insanity,  if  partial, 
must  be  such  in  degree  as  wholly  to 
deprive  the  accused  of  the  guide  of 
reason  in  regard  to  the  act  with  which 
he  is  charged,  and  of  the  knowledge 
that  he  is  doing  wrong  in  committing 
it.  If,  though  somewhat  deranged,  he 
is  yet  able  to  distinguish  right  from 
wrong  in  the  particular  case  in  which 
crime  is  imputed  to  him,  and  to  know 
that  he  is  doing  wrong,  the  act  is  crimi- 
nal in  law,  and  he  is  liable  to  punish- 
ment. But  it  is  insisted  for  the  prisoner 
that  insanity,  either  general  or  partial, 
may  exist,  and  the  subject  be  totally 
unable  to  control  his  actions,  while  his 
intellect,  or  knowing  and  reasoning 
powers,  suffer  no  notable  lesion  ;  it  is 
claimed  that  persons  thus  afflicted  may 
be  capable  of  reasoning  or  supporting 
an    argument  on    any  subject  within 

their  sphere  of  knowledge 

This  affliction  has  received  the  name 
of  Moral  Insanity,  because  the  natural 
feelings,  affections,  inclinations,    tem- 


INSANITY    AS    A   DEFENCE    TO    CHARGE   OF   CRIME.       [§  159. 

but  affected  with  insanity,  and  such  affection  was  the  effi-    recog;nized 

,         in  Illinois 

cient  cause  oi  the  act,  and  that  he  would  not  have  done  the    andin- 
act  but  for  that  affection,  he  should  be  acquitted.     But 


per,  or  moral  dispositions  only  are  per- 
verted, while  the  mind,  the  seat  of 
volition  and  motive,  remains  unim- 
paired. I  will  not  positively  assert 
that  this  theory  is  not  sound  ;  it  may 
be  reconcilable  with  moral  responsi- 
bility for  human  conduat;  but  I  am 
not  reluctant  to  confess  my  own  mental 
inability  to  appreciate  the  harmony 
between  the  two  propositions,  if  it 
exist." 

Under  this  charge  the  prisoner  was 
found  guilty,  and  sentenced  to  the 
state  prison. 

So  in  Spear's  case  (Am.  Journ.  of 
Insan.,  p.  218)  Judge  Allen  told  the 
jury  that  there  must  be  evidence,  in 
order  to  acquit,  of  "  a  lesion  of  the  in- 
tellect and  reasoning  powers,  or  of 
some  derangement  or  disease  affecting 
the  mind  and  judgment." 

Daniel  E.  Sickles  was  tried  in  the 
U.  S.  Circuit  Court  for  the  District  of 
Columbia,  in  1859,  for  the  murder  of 
Philip  B.  Key.  The  defence  was 
mania,  produced  by  the  defendant  dis- 
covering an  adulterous  connection  be- 
tween his  wife  and  the  deceased.  The 
following  statement  of  the  legal  points 
adjudicated  is  taken  from  Elwell's 
Malpractice,  p.  391  : — 

' '  Mr.  Brady  claimed  that  the  im- 
mediate circumstances  attending  the 
seduction  of  Mr.  Sickles's  wife,  and 
the  death  of  Key,  were  of  so  atrocious 
a  nature  as  to  overwhelm  the  mind  of 
Sickles  instantaneously,  and  thus  ren- 
der him  irresponsible  for  the  crime  of 
murder.  He  therefore  drew  up  the 
following  propositions,  and  requested 
the  court  to  embody  them  in  its  charge 
to  the  jury  : — 

"  '  1.  If,  from  the  whole  evidence, 
the  jury  believe  that  Mr.  Sickles  com- 


mitted the  act,  but  at  the  time  of  doing 
so  was  under  the  influence  of  a  dis- 
eased mind,  and  was  really  unconscious 
that  he  was  committing  a  crime,  he  is 
not  in  law  guilty  of  murder. 

"  '  2.  If  the  jury  believe  that  from 
any  predisposing  cause  the  prisoner's 
mind  was  impaired,  and  at  the  time  of 
killing  Mr.  Key  he  became  or  was  men- 
tally incapable  of  governing  himself 
in  reference  to  Mr.  Key,  as  the  de- 
baucher  of  his  wife,  and  at  the  time  of 
committing  said  act  was,  by  reason  of 
such  cause,  unconscious  that  he  was 
committing  a  crime  as  to  said  Mr.  Key, 
he  is  not  guilty  of  any  offence  what- 
ever. 

'"3.  It  is  for  the  jury  to  say  what 
was  the  state  of  the  prisoner's  mind  as 
to  the  capacity  to  decide  upon  the 
criminality  of  the  particular  act  in 
question — the  homicide  —  at  the  mo- 
ment it  occurred,  and  what  was  the 
condition  of  the  parties  respectively  as 
to  being  armed  or  not  at  the  same  mo- 
ment. These  are  open  questions  for 
the  jury,  as  are  any  other  questions 
which  may  arise  upon  the  considera- 
tion of  the  evidence,  the  whole  of 
which  is  to  be  taken  into  view  by  the 
jury. 

"  '4.  The  law  does  not  require  that 
the  insanity  which  absolves  from  crime 
should  exist  for  any  definite  period, 
but  only  that  it  exists  at  the  moment 
when  the  act  occurred  with  which  the 
accused  stands  charged. 

"  '  5.  If  the  jury  have  any  doubt  as 
to  the  case,  either  in  reference  to  the 
homicide  or  the  question  of  sanity,  Mr. 
Sickles  should  be  acquitted.' 

"These  propositions  were  argued  at 
great  length  by  counsel,  especially  by 
Mr.    Brady,  who   contended   that   the 

151 


§  159.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

this  unsoundness  of  mind,  or  affection  of  insanity,  must  be  of  such  a 
degree  as  to  create  an  uncontrollable  impulse  to  'do  the  act  charged 


great  sorrow  that  had  fallen  upon  Mr. 
Sickles  had,  in  fact,  dethroned  his  in- 
tellect, and,  for  the  moment,  he  was 
not  accountable  for  what  he  did.  Craw- 
ford, J.,  charged  as  follows  on  these 
propositions  : — 

"  '  The  court  is  asked  to  give  to  the 
jury  certain  instructions,  whether  on 
the  part  of  the  United  States  or  on  the 
defence.  The  first  instruction  asked 
for  by  the  United  States  embodies  the 
law  of  this  case  on  the  particular 
branch  of  it  to  which  it  relates,  and  is 
granted  with  some  explanatory  re- 
marks as  to  insanity,  with  a  reference 
to  which  the  prayer  closes.  A  great 
English  judge  has  said,  on  the  trial  of 
Oxford,  who  shot  at  the  Queen  of  Eng- 
land, "  That  if  the  prisoner  was  labor- 
ing under  some  controlling  disease 
which  was,  in  truth,  the  acting  power 
within  him  which  he  could  not  resist, 
then  he  will  not  be  responsible."  And 
again:  "The  question  is,  whether  he 
was  laboring  under  that  species  of  in- 
sanity which  satisfies  you  that  he  was 
quite  unaware  of  the  nature,  character, 
and  consequences  of  the  act  he  was 
committing,  or,  in  other  words,  whe- 
ther he  was  under  the  influence  of  a 
diseased  mind,  and  was  really  uncon- 
scious at  the  time  he  was  committing 
the  act  that  that  was  a  crime.  A  man  is 
not  to  be  excused  from  responsibility 
if  he  has  capacity  and  reason  sufficient 
to  enable  him  to  distinguish  between 
right  and  wrong  as  to  the  particular 
act  he  is  doing  ;  a  knowledge  and  con- 
sciousness that  the  act  he  is  doing  is 
wrong  and  criminal,  and  will  subject 
him  to  punishment.  In  order  to  be 
responsible,  he  must  have  sufficient 
power  of  memory  to  recollect  the  rela- 
tion in  which  he  stands  to  others,  and 

152 


in  which  others  stand  to  him  ;  that  the 
act  he  is  doing  is  contrary  to  the  plain 
dictates  of  justice  and  right,  injurious 
to  others,  and  a  violation  of  the  dic- 
tates of  duty.  On  the  contrary,  al- 
though he  may  be  laboring  under  a 
partial  insanity,  if  he  still  understands 
the  nature  and  character  of  his  act  and 
its  consequences,  if  he  has  a  knowl- 
edge that  it  is  wrong  and  criminal,  and 
a  mental  power  sufficient  to  apply  that 
knowledge  to  his  own  case,  and  to 
know  that  if  he  does  the  act,  he  will 
do  wrong  and  receive  punishment,  such 
partial  insanity  is  not  sufficient  to 
exempt  him  from  responsibility  for 
criminal  acts."  Now  we  come  to  those 
asked  on  the  part  of  the  defence,  the 
first  of  which  is  in  these  words  : — 

"  '  In  reply  to  the  ninth  instruction, 
the  court  responds  thus  :  "  It  is  for  the 
jury  to  say  what  was  the  state  of  Mr. 
Sickles's  mind  as  to  the  capacity  to 
decide  upon  the  criminality  of  the 
homicide,  receiving  the  law  as  given  to 
them  in  relation  to  the  degree  of  in- 
sanity, whether  it  will  or  will  not  ex- 
cuse, they  (the  jury)  finding  the  fact 
of  the  existence  or  non-existence  of 
such  degree  of  insanity." 

"'The  tenth  prayer  reads  thus: 
"The  law  does  not  require  that  the 
insanity  which  absolves  from  crime 
should  exist  for  any  definite  period, 
but  only  that  it  exist  at  the  moment 
when  the  act  occurred  with  which  the 
accused  stands  charged."  That  in- 
struction is  granted.  The  time  when 
the  insanity  is  to  operate  is  the  mo- 
ment when  the  crime  charged  upon 
the  party  was  committed,  if  committed 
at  all.  The  eleventh  and  last  instruc- 
tion asked  reads  this  way  :  "  If  the 
jury  have  any  doubts  as  to  the  case, 


INSANITY    AS   A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  159. 

by  overriding  the  reason  and  judgment,  and  obliterating  the  sense 
of  right  and  wrong  as  to  the  particular  act  done,  and  depriving  the 


either  in  reference  to  the  homicide 
or  question  of  insanity,  Mr.  Sickles 
should  be  acquitted." 

"  'This  instruction,  as  I  mentioned 
in  referring  to  prayer  four  of  the  United 
States,  will  be  answered  in  conjunction 
with  it. 

"'It  does  not  appear  to  be  ques- 
tioned that  if  a  doubt  is  entertained  by 
the  jury,  the  prisoner  is  to  have  the 
benefit  of  it.  As  to  the  sanity  or  in- 
sanity of  the  prisoner  at  the  moment 
of  committing  the  act  charged,  it  is 
argued  by  the  United  States,  that, 
every  man  being  presumed  to  be  sane, 
the  presumption  must  be  overcome  by 
evidence  satisfactory  to  the  jury  that 
he  was  insane  when  the  deed  was  done. 

"  'This  is  not  the  first  time  this  in- 
quiry has  engaged  my  attention.  The 
point  was  made  and  decided  at  the 
June  term,  1858,  in  case  of  the  United 
States  V.  Devlins,  when  the  court  gave 
the  following  opinion,  which  I  read 
from  my  notes  of  the  trial:  "This 
prayer  is  based  on  the  idea  that  the 
jury  must  be  satisfied,  beyond  all  rea- 
sonable doubt,  of  the  insanity  of  the 
party  for  whom  the  defence  is  set  up  ; 
precisely  as  the  United  States  are  bound 
to  prove  the  guilt  of  a  defendant  to 
warrant  a  conviction.  I  am  well  aware, 
and  it  has  appeared  on  this  argument, 
that  it  has  been  held  by  a  court  of 
high  rank  and  reputation  that  there 
must  be  a  preponderance  of  evidence 
in  favor  of  the  defence  of  insanity  to 
overcome  the  presumption  of  law  that 
every  killing  is  a  murder  ;  and  that 
the  same  court  has  said  that  if  there  is 
an  equilibrium,  including,  I  suppose, 
the  presumption  mentioned,  of  evi- 
dence, the  presumption  of  the  defend- 
ant's innocence  makes  the  preponder- 
ance in  his  favor." 


"  '  Whether  a  man  is  insane  or  not 
is  a  matter  of  fact ;  what  degree  of  in- 
sanity will  relieve  him  from  responsi- 
bility is  a  matter  of  law,  the  jury 
finding  the  fact  of  the  degree  too. 
Under  the  instruction  of  the  court, 
murder  can  be  committed  only  by  a 
sane  man.  Everybody  is  presumed  to 
be  sane  who  is  charged  with  a  crime, 
but,  when  evidence  is  adduced  that  a 
prisoner  is  insane,  and  conflicting  tes- 
timony makes  a  question  for  the  jury, 
they  are  to  decide  it  like  every  other 
matter  of  fact,  and,  if  they  should  say 
or  conclude  that  there  is  uncertainty, 
that  they  cannot  determine  whether 
the  defendant  was  or  is  not  so  insane 
as  to  protect  him,  how  can  they  render 
a  verdict  that  a  sane  man  perpetrated 
this  crime,  and  that  no  other  can  ? 

"  '  Nor  is  this  plain  view  of  the  ques- 
tion unsupported  by  authority.  In 
the  case  of  The  Queen  v.  Ley,  in  1840, 
Lewin's  C.  C.  p.  239,  on  a  preliminary 
trial  to  ascertain  whether  a  defendant 
was  sufficiently  sane  to  go  before  a 
petit  jury  on  an  indictment,  Hullock, 
B.,  said  to  the  jury:  "If  there  be  a 
doubt  as  to  the  prisoner's  sanity,  and 
the  surgeon  says  it  is  doubtful,  you 
cannot  say  he  is  in  a  fit  state  to  be  put 
on  trial."  This  opinion  was  approved 
in  People  v.  Freeman,  4  Denio,  9.  This 
is  a  strong  case,  for  the  witness  did  not 
say  the  prisoner  was  insane,  but  only 
that  it  was  doubtful  whether  it  was  so 
or  not.  The  humane,  and,  I  will  add, 
just  doctrine,  that  a  reasonable  doubt 
should  avail  a  prisoner,  belongs  to  a 
defence  of  insanity,  as  much,  in  my 
opinion,  as  to  any  other  matter  of 
fact.'  "  See  infra,  §  174.  See  Hop- 
pin's  case,  rep.  34  Am.  Journ.  Ins. 
462. 

153 


§  161.]       MENTAL   UNSOUNDNESS   IN    ITS   LEGAL    RELATIONS. 

accused  of  the  power  of  choosing  between  them.  If  it  be  shown 
the  act  was  the  consequence  of  an  insane  delusion  and  caused  by*  it 
and  by  nothing  else,  justice  and  humanity  alike  demand  an  acquittal. 
Sound  mind  is  presumed  if  the  accused  is  neither  an  idiot,  a  lunatic, 
nor  "  affected  with  insanity."  If  he  be  insane,  sound  mind  is  want- 
ing and  the  crime  is  not  established,  therefore  the  burden  is  on  the 
state  to  establish  sanity,  and  not  upon  the  prisoner  to  show  insanity.^ 
So,  also,  Judge  Brewster,  speaking  for  the  judges  of  the  Phila- 
delphia common  pleas,  said,  in  1868,  "  The  true  test  in  all  these 
cases  lies  in  the  word  '  power.'  Has  the  defendant  in  a  criminal 
case  the  power  to  distinguish  right  and  wrong,  and  the  power  to 
adhere  to  the  right  and  avoid  the  wrong  ?"^ 

In  Indiana  a  similar  view  was  accepted  in  1869.^ 
§  160.    In  Ohio,  insane  irresistible  impulse  is  regarded  as  a 
.    ,  .  defence  ;*  and  such  is  the   view  in  Minnesota,^  and  in 

And  m  ' 

Ohio,  Min-  Kentucky.^  In  Iowa,  in  1868,  similar  views  Avere  ex- 
Kentucky,  pressed  by  the  supreme  court,  Chief  Justice  Dillon  de- 
andlowa.  liyering  the  opinion.  The  capacity  to  distinguish  right 
and  wrong,  it  was  held,  is  not  in  all  cases  a  safe  test  of  criminal 
responsibility.  If  a  person  commit  a  homicide,  knowing  it  to  be 
wrong,  but  driven  to  it  by  an  uncontrollable  and  irresistible  im- 
pulse, arising  not  from  natural  passion,  but  from  an  insane  condi- 
tion of  the  mind,  he  is  not  criminally  responsible  J  To  the  same 
effect  is  a  decision  of  the  supreme  court  of  the  United  States  in 
1872.8 

§  161.  In  North  Carolina,  on  the  other  hand,  it  has  been  ruled 
^  ■       .        that  no  impulse,  however  irresistible,  is  a  defence,  when 

Contra  in  r  ■>  ? 

North  Car-  there  is  a  knowledge  of  the  difference,  as  to  the  particular 
other  act,  between  right  and  wrong."     And  there  is  no  question 

states.  ^i^^j.  ^j^g  position  that  an  irresistible  impulse  can  be  a 

defence  is  inconsistent  with  the  rule  laid  down  in  the  great  body  of 

1  See  Fisher  v.  People,  23  111.  283  ;     S.  57  ;  and  Mary  Harris's  case,  22  Am. 
Hopps  V.  People,  31  111.  394.  Journ.  Ins.  334. 

2  Com.  V.  Haskell,  2  Brewst.  491.  s  Life    Ins.    Co.    v.    Terry,    15  Wal. 

3  Stevens  v.  State,  31  Ind.  485.  580  ;  see  also  Blackburn  v.  State,  23 
«  Blackburn  v.  State,  23  Oh.  St.  146.  Ohio  St.  165;  Brown  v.  Cora,,  78  Penn. 
6  State  V.  Gut,  13  Minn.  341.  St.  122 ;  and  other  cases  in  Wh.  Cr.  L. 

6  Smith  V.  Com.,  1  Duv.  224.  8th  ed.  §  45. 

7  State   V.  Felter,  25   Iowa,  67  ;   see        «  state   v.    Brandon,    8   Jones,    463. 
also  McFarland's  case,  8  Abb.  Pr.  N.     See  also  infra,  §  170. 

154 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  162. 

cases  which  sustain  the  "  right  and  wrong"  test  as  an  exclusive 
standard.^ 

§  162.  Mania  transitorta,  or  Furor  transitorius,  so  far  as  it 
ma  J  be  set  up  as  a  legal  defence,  may  be  properly 
noticed  in  this  connection ;    its  psychological  relations    u-ansuoria 
being  reserved  for  subsequent  discussion.^     3Iania  tran-   ^°^^ 
sitoria,  which  is  alleged  to  be  a  sudden  attack  of  mania, 
exhibiting  itself  in  a  person  whose  life  prior  and  subsequent  to  the 
attack  was  generally  sane,  was  set  up  as  a  defence  in  the  trial, 
before  the  supreme  court  of  Massachusetts,  in  1868,  of  Andrews 
for  the  murder  of  Holmes.     The  psychological  points  raised  at  this 
trial  will  be  subsequently  noticed.     It  is  sufficient  now  to  give  the 
legal  results  introduced  by  Chief  Justice  Chapman  in  his  charge  to 
the  jury. 

"  Insanity  is  to  be  distinguished  from  passion.  One  may  become 
so  far  infuriated  by  passion,  excited  by  words  or  blows  or  by  a 
struggle,  as  to  yield  himself  up  blindly  to  its  impulse,  and  not 
know  what  he  does.  But  such  passion  is  not  insanity.  One  who 
does  not  control  his  passions  is  to  blame,  but  an  insane  man  is  not 
to  blame.  He  is  prostrated  by  disease  of  body  which  has  so  far 
affected  his  mind  that  he  is  innocent  in  being  unable  to  distinguish 
right  from  wrong. 

"  If  the  prisoner  killed  Holmes  under  the  mere  influence  of  evil 
passions,  and  without  provocation,  he  is  guilty.  On  the  other 
hand,  if  there  was  no  evil  passion  or  motive,  and  he  was  insane,  he 
is  an  innocent  man,  and  is  entitled  to  go  at  large  as  much  as  any 
of  us.  If  he  is  acquitted  on  that  ground,  you  must  say  so  in  your 
verdict.  I  will  read  to  you  the  statute  on  that  subject.  [Reads 
Gen.  Stat.,c.  172,  sec.  17.] 

"  But,  as  it  is  not  pretended  that  he  is  now  insane,  if  you  acquit 
him  on  the  ground  of  insanity  he  will  be  entitled  to  go  at  large. 
You  will  need  to  consider  with  the  utmost  care  the  evidence  on  this 
subject.  And  here  there  are  certain  presumptions  of  fact  which 
are  founded  on  experience. 

"  If  when  a  man  does  an  act  he  has  always  been  sane,  this  tends 
to  prove  that  he  was  sane  when  he  did  it.     On  the  contrary,  if  he 

«  See  Wh.  Cr.  L.  8th  ed.  §  35  et  seq.;  »  See  infra,  §  710  ;  U.  S.  v.  Guiteau, 
TJ.  S.  V.  Guiteau,  infra,  §  679.  in/ra,  §  679. 

155 


§  162.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

had  been  insane  a  short  time  before  the  act,  this  tends  to  prove 
that  he  was  insane  when  he  did  it.  This  presumption  is  often 
applied  to  the  making  of  wills  and  deeds.  It  applies  with  equal 
force  to  the  taking  of  another's  life.  Another  similar  rule  is  that, 
if  a  man  is  sane  just  after  having  done  an  act,  it  tends  to  prove 
that  he  was  sane  when  he  did  it ;  but,  if  he  was  insane  just  after, 
it  tends  to  prove  that  he  was  insane  when  he  did  it.  You  can  judge 
practically  how  strong  these  presumptions  of  evidence  are.  You 
are  to  apply  them  to  the  present  case. 

"  Up  to  within  a  few  moments  of  Holmes's  death,  had  the  prisoner 
been  insane  ?  Had  he  ever  been  insane  ?  or  had  he  been  insane 
within  a  short  period  ?  If  he  had  never  been  insane,  or  if  he  had 
not  been  insane  for  some  time  previous,  that  would  have  a  tendency 
to  show  that  he  was  not  insane  when  he  committed  the  act.  From 
a  few  moments  after  the  act  has  he  been  insane  ?  If  he  has  been 
sane  from  a  few  moments  after  the  act,  it  tends  to  show  that  he  was 
sane  when  he  did  it.  If  he  has  been  insane  since,  it  tends  to  show 
that  he  might  have  been  insane  when  he  did  it. 

"  There  is  evidence  on  this  subject  as  to  his  appearance  some 
two  years  ago,  when  Frank  Bobbins,  his  relative,  died ;  also  as  to 
his  appearance  at  New  Market.  And  some  other  facts  are  alluded 
to  by  his  counsel.  You  heard  them  in  evidence.  I  do  not  propose 
to  recapitulate  the  evidence  on  this  subject.  Both  the  experts  say 
that  these  various  circumstances  furnished  no  proof  of  insanity. 
There  is  also  evidence  that  the  prisoner  had  frequent  headaches ; 
but  it  hardly  needs  an  expert  to  testify  as  to  them.  So  many  of 
us  suffer  intense  pain  from  them  during  the  best  years  of  our  lives, 
that  no  one  will  infer  insanity  from  them  alone.  The  jury  will 
judge  of  the  strength  of  the  proof  as  to  the  prisoner's  sanity  when 
he  killed  Holmes,  arising  from  the  testimony  as  to  his  being  sane 
before  and  afterwards,  the  proof  coming  so  near  to  the  time  of 
killing.  If  he  was  calm  as  well  as  rational  immediately  before  and 
immediately  after,  it  will  tend  to  show  how  far  he  was  calm  and 
rational  then.  And  in  this  connection  the  question,  whether  the 
prisoner  had  any  motive  to  do  the  act  which  could  possibly  influence 
a  sane  man,  is  a  question  to  be  taken  into  consideration.  You  will 
also  consider  the  instrument  which  he  used,  and  all  the  circum- 
stances of  the  act  of  killing.  The  prisoner  is  himself  a  witness, 
and  testifies  as  to  his  state  of  mind  when  he  did  the  act.  We  learn 
156 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OF    CRIME.       [§  162. 

from  him  all  the  facts  we  know  in  regard  to  his  insanity  at  the  time. 
The  description  of  it  comes  from  him  alone. 

"  There  are  two  things  to  be  inquired  into  on  this  point.  In  the 
first  place,  assuming  his  statement  to  be  true,  does  it  prove  that 
bodily  disease  had  suddenly  attacked  him,  and  that  he  acted  under 
that  influence,  or  that  he  acted  under  the  influence  of  passion,  and 
thus  became  blind  and  furious  ?  If  it  was  the  latter  it  was  not 
insanity,  and  he  must  seek  for  an  excuse  on  other  grounds,  which  I 
shall  speak  of  hereafter.  On  this  point  the  opinion  of  the  two 
experts  is  given.  Dr.  Jarvis  says  the  facts  indicated  a  maniacal 
paroxysm.  Again,  he  says,  not  regarding  the  prisoner's  statement 
as  true,  the  facts  tend  to  raise  a  suspicion  of  insanity.  He  says 
the  act  of  killing,  of  itself,  is  no  evidence  of  insanity.  Few  men 
would  pretend  that  the  mere  act  of  killing  another  is,  of  itself,  evi- 
dence of  insanity.  It  would  give  to  crime  perfect  impunity  if  the 
commission  of  crime  were  to  be  regarded  as  an  evidence  of  insanity. 
I  believe  there  are  some  philosophers  who  pretend  to  think  it  is  so ; 
but  they  lay  aside  common  sense,  and  would  deprive  the  community 
of  all  protection  against  criminals.  It  is  proper  also  to  say,  that, 
if  a  homicide  is  committed  with  circumstances  of  cruelty  and  atro- 
city, that  cruelty  and  atrocity,  of  itself,  does  not  tend  to  prove 
insanity.  The  statute  treats  such  circumstances  as  aggravations  of 
the  crime,  and  not  as  proof  of  insanity.  If  they  were  of  themselves 
regarded  as  evidence  of  insanity,  it  would  furnish  an  inducement  to 
every  murderer  to  act  with  as  much  cruelty  as  possible,  in  order 
to  furnish  proof  that  he  was  insane,  and  excuse  himself  on  that 
ground.  But  if  the  act  is  done  without  any  assignable  motive,  you 
look  more  readily  to  insanity  as  the  cause,  than  if  a  strong  motive 
were  proved. 

"  I  have  spoken  of  the  opinion  of  Dr.  Jarvis  that  there  might 
have  been  a  sudden  attack  of  insanity  that  came  on  without  any 
premonition,  led  to  the  murder,  and  departed  as  soon  as  the  murder 
was  committed,  leaving  no  trace  behind.  The  opinion  of  Dr. 
Choate  is  the  contrary.  He  regards  such  a  kind  of  insanity  as 
unheard  of  and  impossible.  As  insanity  arises  from  bodily  disease, 
he  thinks  it  could  not  come  on  so  suddenly,  rage  so  violently,  and 
then  totally  disappear.  You  are  to  judge  of  these  opinions.  The 
opinions  of  experts  are  mere  evidence  for  the  jury  to  consider  in 
connection  with  other  evidence.     The  responsibility  is,  after  all, 

157 


§  165.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

on  you  to  say  whether  the  prisoner  is,  or  is  not,  guilty  by  reason 
of  insanity.  I  think  the  opinions  of  experts  are  not  so  highly 
regarded  now  as  they  formerly  were,  for,  while  they  often  afford 
great  aid  in  determining  facts,  it  often  happens  that  experts  can  be 
found  to  testify  to  any  theory,  however  absurd.  The  experts 
before  you  are  gentlemen  of  learning,  and  you  must  judge  between 
them."i 

4.  '■''Moral  insanity''^  (i.e.  a  supposed  insanity  of  the  moral  system 
claimed  to  coexist  with  mental  sanity^  is  no  defence. 

[For  several  important  medico-juridical  opinions  in  cases  of  alleged 
"  moral  insanity,''^  see  Appendix  to  third  edition  of  this  work, 
§§  834,  838,  843,  848.] 

§  163.  At  the  outset  it  must  be  remembered  that  "  moral  in- 

(jj,  sanity,"  as   above  defined,  is  to  be   distinguished  (1) 

sanity"  is  from  insane  irresistible  impulse,  (2)  from  transitory 
no  defence.  .  i^cnp  t     •  ■  •  ^  i^^i-i 

mania,  and  (3)  trom  occult  insanity,  with  each  ot  which 

it  is  sometimes  confounded. 

Hereafter  it  will  be  shown^  that  moral  insanity,  viewed  in  this 
sense,  has,  psychologically,  no  existence.^  It  will  also  be  shown 
that  "  motivelessness"  is  no  necessary  proof  of  insanity.  At  pre- 
sent it  will  be  shown  that  moral  insanity  is  not,  by  our  law,  a 
defence  to  an  indictment  for  crime. 

&  164.  Moral  insanity,  viewing  the  term  in  the  sense 

Thisaffirm-      •,  .   ,     .         .  ,  ,  ,  ^    , 

edinEng-    which  IS  given  above,  has  been,  whenever  it  has  been 
^^  '  suggested   as   a   defence,   repudiated    by   the    English 

courts.* 
§  165.  On  the  trial  of  Townley  in  1868  this  question  was  dis- 
In  Town-       tinctly  presented.     The  defendant  was  shown,  on  the 
ley's  case.      ^y'ihI  before  Baron  Martin,  to  have  belonged  to  a  family 
in  which  positive  insanity  existed ;  it  was  proved  by  medical  wit- 

•  See  review  of  this  case  by  Dr.  Jar-         '  Infra,  §§  401-404. 

yis,  in  26  Am.  J.  Ins.  369  ;  and  infra,  *  R.  v.  Oxford,  9  C.  &  P.  525  ;  R.  v. 

§§  710-722.     For   an   interesting  case  Goode,  7  A.  &  E.  536  ;  R,  v.  Barton,  3 

of  alleged   mania  transitoria,  with  the  Cox,  C.  C.  275  ;  R.  v.  Higginson,  1  C. 

opinion  of  Dr.  Casper,  see  App.  to  3d  &  K.  129  ;  R-  v.  Layton,  4  Cox,  C.  C. 

ed.  of  this  work,  §  840.  149  ;  and  cases  hereafter  cited. 

*  Infra,  §§  531-678. 

158 


INSANITY    AS    A    DEFENCE   TO    CHARGE   OF   CRIME.      [§  166. 

nesses  that  he  stated  to  them  that  he  did  not  think  he  had  com- 
mitted any  crime,  though  it  must  be  remembered  that  this  is  what 
was  said  by  Burr  after  the  death  of  Hamilton,  and  what  would  be 
said  by  any  one  acting  on  the  "  law  of  honor,"  or  any  other  pre- 
tended higher  law  ;  and  it  was  shown  that  the  reason  on  which  he 
relied  for  this  notion  was,  that,  the  lady  whom  he  killed  having 
been  engaged  to  him,  she  was  his  property,  and  that,  for  what  he 
called  virtual  adultery,  he  was,  by  the  law  of  honor,  entitled  to 
punish  her  by  death.  It  was  also  testified  by  Dr.  Forbes  Winslow, 
that  he  found  it  impossible  to  impress  the  defendant  with  a  sense  of 
the  seriousness  of  the  issue.  But  Baron  Martin  charged  the  jury, 
that,  in  point  of  law,  these  facts  did  not  constitute  a  defence.  "  If," 
said  he,  "  his  (the  defendant's)  real  motive  was,  that  he  conceived 
himself  to  have  been  ill  used,  and,  either  from  jealousy  of  the  man 
who  was  preferred  to  him,  or  from  a  desire  of  revenge  upon  him, 
committed  the  act,  that  would  be  murder.  These  were  the  very 
passions  which  the  law  required  men  to  control ;  and,  if  the  deed 
was  done  under  the  influence  of  these  passions,  there  was  no  doubt 
that  it  was  murder."  The  cautiousness  with  which  this  is  stated 
cannot  escape  observation.  The  judge  does  not  say  that  the  defen- 
dant was  to  be  convicted  though  he  did  the  act  under  an  insane 
delusion  that  to  do  so  was,  by  some  supposed  higher  law,  right.  It 
is  simply  declared  that  to  kill  under  influence  of  jealousy  or  revenge 
is  murder.  It  is  proper  to  add  that  the  defendant  was  convicted, 
and  sentenced  for  life  to  penal  servitude  ;  during  which  he  com- 
mitted suicide.^ 

§  166.  The  Rev.  J.  Selby  Watson,  a  clergyman  of  over  seventy 
years,  was  tried  in  London,  in  January,  1872,  for  the    in  Wat- 
murder  of  his  wife.     It  appeared  in  evidence  that  for   ^°^'^  '^^®^' 

'  See  R.  V.  Townley,  3  F.  &  F..  839  ;  act,    and  the   circumstances   showing 

supra,  §  127.     Shortly  after  Townley's  sense  and  deliberation,  and  a  perfect 

case,  on  a  trial  for  murder,  before  Erie,  understanding  of  the  nature  of  the  act : 

J.,  the  defence  relied  on  evidence  show-  it  was  held,  that  the  evidence  was  not 

ing  a  great  amount  of  senseless  extra-  sufficient  to  support  the  defence,  as  it 

vagance    and    absurd    eccentricity    of  rather  tended  to  show  wilful  excesses 

conduct,  coupled  with  habits  of  exces-  and  extreme  folly  than  mental  inca- 

sive  intemperance,  causing  fits  of  de-  pacity.     R.  v.   Leigh,  4  F.  &  F.   915. 

lirium  tremens,  the  prisoner,  however.  See  also  R.  v.  Southey,  4  F.  &  F.  864; 

not  having   been    laboring  under  the  and  also  an   interesting  review  in  23 

effects  of  such  a  fit  at  the  time  of  the  Am.  Journ.  of  Insanity,  387. 

159 


§  167.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

years  he  had  been  suiFering  under  her  petulance  and  violence  ;  and  it 
was  made  probable  that  the  act  was  done  in  a  condition  of  frenzied 
rage.  The  defence  was  insanity,  lashed  into  fury  by  provocations 
which  had  become  unendurable.  Mr.  Justice  Byles,  in  his  charge 
to  the  jury,  said,  according  to  the  report  in  the  Times  of  January 
13,  1872,  "  that  the  real  and  only  question  .  .  was  this.  Was  the 
prisoner  at  the  time  he  committed  the  act  legally  responsible  for  it, 
and  was  he  a  responsible  agent  ?  That  depended  upon  a  question, 
on  which  the  counsel  also  agreed,  Did  he  at  the  time  he  com- 
mitted this  act  know  what  he  was  doing  f  If  not,  of  course  he  was  not 
criminally  responsible.  Did  he  also  know  that  what  he  was  doing  was 
wrong  ?"  The  learned  judge  added  that  he  was  aware  that  doubts 
on  the  universal  applicability  of  this  rule  had  been  expressed  by 
many  eminent  persons  for  whose  opinion  he  had  the  greatest  respect. 
"  But  if  it  was  to  be  altered  at  all,  it  must  be  altered  by  act  of  par- 
liament." The  defendant  Avas  convicted  and  sentenced  to  be  hung, 
with  a  recommendation  to  mercy  ;  and  the  sentence  was  commuted 
to  imprisonment  for  life. 

§  167.  Christiana  Edmunds  was  tried  in  January,  1872,  at  Lon- 
don, before  Baron  Martin,  for  the  murder  of  a  little  boy, 

And  in 

Edmunds's  named  Barker,  on  the  12th  of  the  preceding  June.  The 
uncle  of  the  boy  had  on  that  day  bought  some  chocolate 
cream  drops  from  a  respectable  confectioner  named  Maynard.  Of 
these  the  boy  ate  several,  and  died  a  few  hours  afterwards.  At  a 
post  mortem^  strychnine  enough  was  found  in  his  stomach  to  have 
killed  an  adult.  Shortly  afterwards  evidence  transpired  which 
connected  the  prisoner  with  the  poisoning.  It  appeared  that  be- 
tween March  and  June  she  obtained  from  a  chemist  at  Brighton, 
on  various  pleas,  and  once  on  a  false  name,  a  considerable  quantity 
of  strychnine.  Towards  the  end  of  May,  she  sent  a  boy  whom  she 
met  in  the  street  to  buy  some  chocolate  drops  for  her  at  Mr.  May- 
nard's.  When  he  returned  with  them,  she  said  they  were  too 
large,  and  she  sent  him  back  to  exchange  them  for  others  which 
were  smaller.  This  was  done  ;  and  the  case  of  the  prosecution 
was  that,  in  this  way,  she  introduced  into  the  shop  the  poisoned 
sweets  by  which  young  Barker  had  been  killed.  It  further  ap- 
peared that  she  had  frequently  sent  little  boys  on  a  similar  errand ; 
that  she  had  left  parcels  of  sweets  in  other  shops ;  and  that  chil- 
dren who  had  eaten  out  of  these  parcels  had  been  taken  sick  with 
160 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  169. 

symptoms  not  unlike  those  produced  by  strychnine.  It  was  shown, 
also,  by  way  of  motive,  that  she  had  become  attached  to  a  Dr. 
Beard  ;  that  she  had  given  Mrs.  Beard  a  chocolate-cream  which 
had  caused  the  latter  much  sickness ;  that,  to  divert  suspicion 
from  herself  of  intentional  poisoning,  she  had  sought  to  throw  the 
charge  on  Mr.  Maynard;  that,  to  do  so,  she  had,  in  the  way  speci- 
fied, introduced  poisoned  candy  into  his  store ;  and  that,  to  clinch 
the  matter,  she  gave  evidence,  on  the  inquest  that  followed  the 
death  of  young  Barker,  that  she  had  herself  bought  poisonous 
candy  at  Mr.  Maynard's  shop.  She  was  also  shown  to  have 
written  anonymous  letters  to  the  father  of  Barker  urging  him  to 
prosecute  Mr.  Maynard ;  and  she  took  an  active  part  in  that  prose- 
cution herself. 

§  168.  Insanity  was  the  defence,  and  it  was  proved  that  the 
prisoner's  father  was,  at  the  age  she  had  reached  on  the  trial,  a 
maniac,  and  that  he  died  in  an  asylum  ;  that  her  brother  was  from 
childhood  an  epileptic  idiot ;  that  her  sister  labored  under  chronic 
hysteria,  and  had  attempted  suicide  ;  that  her  mother's  father  died 
at  43  in  an  imbecile  state  from  paralysis ;  and  that  she  herself, 
eighteen  years  before,  had  suffered  from  partial  paralysis  and 
hysteria.  Dr.  Wood,  physician  to  St.  Luke's  Hospital,  stated  that 
he  visited  the  prisoner  about  ten  days  before  the  trial,  in  connec- 
tion with  Dr.  Maudsley  and  others.  He  was  struck  with  her  indif- 
ference to  her  position  ;  he  thought  her  quite  incapable  of  estimat- 
ing it ;  and  he  believed  her  "  incapable  of  judging  between  right 
and  wrong  in  the  same  sense  that  other  people  would."  Dr.  Rob- 
ertson testified  that  he  thought  "her  intellect  quite  clear  and  free 
from  any  delusion,  but  that  her  moral  sense  was  deficient,  as  in  the 
descendants  of  insane  parents."  Dr.  Maudsley  concurred  gene- 
rally with  Dr.  Robertson,  but  he  went  on  to  say,  in  his  cross-exam- 
ination, that  "  everybody  who  committed  crime  exhibited  some  want 
of  moral  feeling." 

§  169.  Baron  Martin,  in  his  charge,^  said,  in  respect  to  insanity, 
the  question  "was  a  difficult  one.  A  poor  person,  he  remarked  by 
the  way,  was  seldom  afflicted  with  insanity,  and  it  was  common  to 
raise  a  defence  of  that  kind  when  people  of  means  were  charged 
with  the  commission  of  crime.     He  had  heard  a  doctor  say  that  all 

'  See  report  in  the  Times,  of  January  17,  1872. 
VOL.  I. — 11  161 


§.  169.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

mankind  were  mad  more  or  less,  but  that  had  little  to  do  with  the 
case  under  consideration.  The  state  of  mind  which  excused  crime 
was  well  fixed  in  our  law.  There  were  many  diseases  to  which  the 
mind  was  liable  as  well  as  the  body.  There  was  the  idiot,  who 
was  born  without  any  mind  whatever.  Again,  there  was  the  man 
who  was  raging  mad,  and,  if  he  had  what  was  called  a  homicidal 
tendency,  he  would  have  no  more  criminal  responsibility  than  a 
tiger.  But  the  most  numerous  cases  of  that  kind  were  of  persons 
said  to  be  subject  to  delusions.  They  were  persons  who  believed 
in  a  state  of  things  which  did  not  exist,  and  acted  on  that  state  of 
things."  After  giving  the  answers  of  the  judges  in  McNaughten's 
case,  he  said,  "  If  the  jury  in  this  case  should  think  that  the 
prisoner  did  not  knoiv  right  from  wrong  at  the  time  she  committed 
the  crime  ivith  which  she  is  charged,  if  she  did  commit  it,  they 
must  acquit  her."  The  scope  of  the  charge  is,  that,  if  the  defendant 
was  under  a  delusion  Avhich  made  the  poisoning  seem  right  to  her, 
she  was  entitled  to  an  acquittal  on  the  ground  of  insanity.  If  not, 
she  should  be  convicted.  It  is  difficult  to  see  what  sound  objec- 
tions can  be  made  to  this  view  of  the  law.  If  the  fact  that  a  per- 
son has  descended  from  insane  ancestors,  or  has  years  back  shown 
symptoms  of  insanity,  is  a  bar  to  an  indictment  for  crime,  then 
persons  who  have  been  so  affected  will  become  a  class  who  can 
murder,  or  burn,  or  rob  with  impunity,  and  whom  society,  as  it 
cannot  punish,  will  be  obliged  to  sequestrate  by  a  process  which 
will  bear  far  more  harshly  on  them  than  would  the  penal  amena- 
bility which  would  be  otherwise  imposed.  The  act  for  which  the 
prisoner  was  tried  was  marked  by  much  premeditation,  and  was 
executed  with  great  intelligence  ;  and  there  was  no  proof  at  the 
trial  either  of  any  insane  delusion  on  her  part,  or  of  such  a  condi- 
tion of  mind  and  will  as  deprived  her  of  ability  to  resist  the  impulse 
to  the  fatal  deed.  Dr.  Robertson  came  nearest  to  a  positive  state- 
ment ;  but  he  limited  himself  to  saying,  that,  while  the  prisoner's 
intellect  was  good,  her  moral  sense  was  deficient,  and  that  her  act 
was  "  on  the  border-land  between  crime  and  insanity.  Even,  there- 
fore, supposing  that  the  law  recognized  such  a  defence  as  irresistible 
homicidal  impulse,  it  is  difficult  to  see  how  this  defence  could  have 
been  sustained  on  such  feeble  asseverations  as  these,  in  the  face  of 
direct  proof  that  the  prisoner  was  fully  capable  of  so  moulding  her 
"  impulse,"  not  only  as  to  make  it  subservient  to  a  very  important 
162 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OF   CRIME.      [§  170. 


purpose  of  her  own,  but  to  let  it  out  when  it  was  likely  to  he  unde- 
tected, and  to  restrain  it  when  to  indulge  in  it  would  bring  exposure. 
She  was  under  the  dominion,  so  far  as  the  testimony  went,  of  no 
such  unrestrainable  rage  for  poisoning  as  would  force  her  to  lay 
her  poison  in  the  public  streets,  whenever  the  poison  was  in  her 
hands,  and  persons  to  be  poisoned  before  her  face.  She  poisoned 
when  she  could  do  so  with  impunity  ;  she  controlled  herself  when 
she  could  not. 

§  170.  Such  is  the  case  as  it  appeared  on  the  trial.  But,  so 
slight  were  the  opportunities  of  examination  which  had  been  secured 
by  the  experts  who  testified  for  the  defence,  and  so  consequently 
imperfect  was  their  testimony,  and  so  earnest  were  the  appeals 
made  for  a  reconsideration  of  the  question  on  the  grounds  of  addi- 
tional testimony  as  to  insanity  having  been  secured,  that  Baron 
Martin  united  in  recommending  a  reconsideration  of  the  question  by 
the  home  secretary.^     Additional  medical  testimony  was  taken,  and 


'  The  Lancet  took  strong  grounds 
against  the  verdict.  It  went  so  far  as 
to  make  the  following  extraordinary- 
statement  : — 

"  If  there  be  one  thing  certainly- 
proved  in  mental  medicine,  it  is  this, 
that  for  any  woman  belonging  to  a 
family  which  (like  that  of  the  Ed- 
munds's) was  a  prey  to  insanity  and 
other  nervous  diseases,  and  living  an 
involuntarily  single  life  while  strug- 
gling with  hysteria  and  suppressed 
sexual  feeling,  it  would  be  almost  im- 
possible to  go  on  to  the  critical  age  of 
forty-three  without  actual  derangement 
of  mind.  That  her  crime  had  a  motive, 
and  that  her  conduct  was  directed  with 
an  infernal  cunning  towards  her  end, 
is  not  in  the  least  inconsistent  with  the 
worst  forms  of  madness.  We  do  not 
hesitate  to  say  that  had  Christiana  Ed- 
munds been  hanged,  a  judicial  murder 
would  have  been  committed." 

Dr.  Forbes  Winslow  added  his  high 
authority  to  the  opinion  of  Dr.  Robert- 
son. See  also  Review  of  these  commu- 
nications in  London  Spectator  of  Feb.  3, 
1872. 


The  following  are  part  of  the  com- 
ments of  the  Saturdaii  Review: — 

"It  must  be  admitted  that  public 
opinion  influences  the  administration 
of  criminal  justice  in  this  country,  and 
public  opinion  is  liable  to  fluctuations. 
Some  years  ago  corporeal  punishment 
was  in  extreme  disfavor,  whereas  now 
people  apparently  like  their  newspaper 
to  inform  them  how  a  garroter  looked 
during  his  flogging,  and  it  is  frequently 
suggested  that  other  offences  besides 
robbery  with  violence  might  be  usefully 
visited  with  the  lash.  Garroting  in- 
deed went  on  until  nobody  was  safe 
in  the  streets  after  dark,  and  it  was 
felt  that  the  civilization  and  humanity 
of  the  age  must  submit  to  the  unpleas- 
ant necessity  of  reviving  a  punishment 
which  had  been  regarded  as  only  suit- 
able to  a  period  of  ignorance  and  bar- 
barism. .  .  Suppose  that  Townley 
had  been  acquitted  on  the  ground  of 
insanity,  and  that,  as  is  only  too  pro- 
bable, that  form  of  insanity  had  be- 
come common,  there  would  soon  have 
been  a  general  concurrence  of  opinion 
that  hanging  was  theonly  eff"ectualcure 

163 


§  170.]      MENTAL    UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

it  was  understood  that  Sir  W.  Gull,  and  Dr.  Orange,  superintendent 
at  Broadmoor,  both  high  authorities   in   psychological  medicine, 


for  it.  .  .  Mr.  Baron  Martin,  in  that 
case,  told  the  jury  that,  if  Townley 
knew  that  the  act  which  he  committed 
was  contrary  to  the  law  of  God  and 
punishable  by  the  law  of  the  land,  he 
was  guilty  of  murder.  This,  indeed,  is 
all  that  an  English  judge  can  say  of 
such  a  case,  and  perhaps  it  is  all  that 
he  ought  to  say.  The  doctrine  of  viti- 
ated moral  sense  excusing  crime  cannot 
be  admitted  without  endangering  the 
foundations  of  morality  and  criminal 
justice.  Take,  for  example,  the  char- 
acter which  would  have  been  described 
in  the  words  of  a  well-known  play  of 
the  last  century,  as  that  of  '  bold  in- 
triguer and  a  gay  companion.'  The 
heroes  of  many  comedies  of  that  time 
were  men  of  vitiated  moral  sense,  but 
it  would  never  have  occurred  to  any 
psychologist  to  suggest  that  seduction 
or  adultery  was  pardonable  because  it 
was  committed  without  compunction. 
Another  medical  witness.  Dr.  William 
Wood,  '  was  very  much  struck  with 
prisoner's  absolute  indifference  to  her 
position,  and  lie  failed  altogether  to 
impress  her  with  its  seriousness.' 
These,  again,  are  almost  the  exact 
words  which  were  used  by  Dr.  Forbes 
Winslow  in  Townley's  case.  This  wit- 
ness discussed  with  the  prisoner  the 
subject  of  what  was  said  to  have  passed 
between  her  and  Dr.  Beard.  He  asked 
whether  she  thought  it  wrong  for  a  per- 
son to  destroy  the  life  of  another  person 
because  she  believed  that  the  husband 
of  that  person  wished  to  get  rid  of  her. 
'After  some  hesitation  she  said  she 
thought  it  would  be  wrong,  but  she  did 
not  say  it  in  such  a  manner  as  to  lead 
him  to  believe  she  really  thought  so.' 
The  witness  here  admits,  while  at- 
tempting to  qualify  the  admission,  that 
the  prisoner  had  that  capacity  of  dis- 

164 


tinguishing  right  from  wrong  which  the 
law  holds  to  be  sufficient  to  render  her 
responsible  for  her  actions.  It  seems 
to  follow  that  until  the  law  is  changed 
there  is  nothing  more  to  be  said  about 
the  case.  Dr.  Maudsley  gave  evidence 
to  the  same  effect.  '  He  found  an  ex- 
treme deficiency  of  moral  feeling  as  to 
the  crime  with  which  the  prisoner  was 
charged,  and  she  did  not  appear  thor- 
oughly to  realize  her  position.'  Such 
evidence  ought  to  be  disregarded  in 
this  as  it  has  been  in  many  other 
cases,  but  it  happens  that  the  medical 
witnesses  are  supported  by  the  fact 
that  near  relations  of  the  prisoner  have 
been  committed  to  lunatic  asylums  on 
the  usual  certificates,  and  have  re- 
mained in  them  until  death.  Mr.  Baron 
Martin,  commenting  upon  similar  evi- 
dence which  was  given  in  Townley's 
case,  said  the  object  of  that  evidence 
was  to  show  that  it  was  possible,  and 
not  unlikely,  that  the  hereditary  taint 
might  exist  in  the  prisoner.  'AH  the 
evidence,  however,  failed  to  show  the 
existence  of  any  delusion  in  the  pri- 
soner's mind  which  could  explain  his 
act.'  These  words  fit  accurately  to 
the  present  case,  but  it  must  be  ac- 
knowledged that  the  evidence  of  in- 
sanity in  the  prisoner's  family  went 
much  beyond  that  which  was  given  in 
Townley's  case.  It  is  of  course  possi- 
ble tliat  the  doctors  may  be  right  al- 
though they  give  wrong  reasons  for 
their  conclusions.  We  may  observe 
that  Dr.  Maudsley  has  given  the  same 
reason  for  the  same  conclusion  in  the 
case  of  Watson,  where  we  cannot  help 
saying  that  both  reason  and  conclusion 
api^ear  to  us  preposterous.  It  has  of 
course  been  remarked  that,  if  the  pris- 
oner Edmunds  had  committed  suicide, 
and  the  evidence  of  insanity  existing 


INSANITY    AS    A   DEFENCE    TO    CHARGE   OP   CRIME.       [§  172. 

united,  after  a  careful  examination,  in  the  opinion  that  the  defendant 
was  insane.  Her  sentence  was  consequently  commuted  to  imprison- 
ment at  Broadmoor  as  a  criminal  lunatic. 

§  171.  In  reviewing  this  case,  we  are  first  compelled  to  notice 
the  very  scanty  preparation  which  had  been  made  to  enable  the 
medical  experts  at  the  trial  to  speak  intelligently  on  the  issue. 
The  defence,  indeed,  was  singularly  defective  in  the  scope  of  the 
testimony  it  adduced.  Dr.  Beard,  the  defendant's  family  physician, 
for  whom  it  was  afterwards  suggested  by  Dr.  Winslow  that  the 
prisoner  had  an  "  insane  passion,"  was  not  called  ;  though  no  one 
was  so  competent  as  he  to  speak  as  to  the  state  of  her  mind.  But, 
waiving  this,  the  experts  who  were  examined  had  had  no  personal 
acquaintance  with  her,  and  formed  their  opinion  on  a  brief  prison 
interview.  How  little  comparative  weight  opinions  given  on  such 
slight  examinations  are  entitled  to,  will  be  hereafter  seen.^  The 
medical  gentlemen  referred  to  were  not  to  blame.  They  were 
asked  by  the  prisoner's  friends  to  attend  her  at  the  periods  in  ques- 
tion, and  they  did  so.  The  difficulty  arose  from  the  practice  of 
making  such  examination,  not  judicial,  as  in  Germany,  under  a 
commission  from  the  government,  but  partisan,  conducted  by  the 
defence,  according  to  its  capacity  or  policy.  A  jjoor  defendant, 
under  this  system,  has  no  chance.  A  rich  defendant  can  indeed, 
at  such  periods  as  he  may  desire,  obtain  the  attendance  of  distin- 
guished experts,  but  their  testimony  is  necessarily  imperfect  and 
ex  parte. 

§  172.  Then,  again,  the  peculiar  mode  by  which  convictions  are 
in  England  reviewed  tends,  in  proceedings  such  as  the  present,  still 
further  to  unsettle  the  public  mind,  and  to  increase  the  uncertainty 

in  the  family  had  been  given  at  an  in-  In   commenting  on    these    cases,    a 

quest,   the  jury  would   have   arrived  writer  in  the  Times  said:    "Oxford's 

without  hesitation  at  a  verdict  which  confinement  as  a  lunatic  had  no  effect 

would  have  been  generally  approved,  whatever    in    preventing    persons    of 

It  is,  however,  unnecessary  to  add  that  weak  or  perverse  minds  from  firing  or 

in  all  such  cases  we  ought  not  to  be  attempting  to  fire  at  her  majesty  ;  but 

unduly  influenced  in  our  estimate  of  the  moment  flogging  was  assigned  as 

facts   by   the   indisposition  which   we  the  penalty  for  the  ofl'ence,  the  weak 

feel   to   give   apparent   sanction   to    a  and  the  perverse  restrained  themselves 

theory    of   irresponsibility    for    crime  at   once,    and   the   offence   was   never 

which  we  regard  as  mistaken  and  per-  heard  of  again." 

nicious."  '  See  infra,  §§  328-345. 

165 


§  174.]       MENTAL   UNSOUNDNESS   IN   ITS    LEGAL   RELATIONS. 

of  the  law.  That  the  home  secretary  should  have  issued  a  requisi- 
tion to  Dr.  Orange  and  Sir  W.  Gull,  to  semi-judicially  examine  the 
question  of  Christiana  Edmunds's  sanity,  Avas  eminently  proper. 
But  the  examination  should  have  been  conducted  in  open  court,  or, 
at  least,  as  is  the  practice  in  Germany,  the  return  of  those  eminent 
physicians  should  have  been  under  oath,  and  should,  reasons  and 
conclusions,  have  been  published.  As  it  is,  we  have,  on  the  one 
side,  a  published  trial,  leading  to  the  conclusion  of  her  sanity,  on 
which  conclusion  she  was  found  guilty  by  the  jury  and  sentenced 
by  the  court,  and,  on  the  other  hand,  a  secret  subsequent  investiga- 
tion, showing  her  insanity,  leading  to  the  virtual  setting  aside  of 
verdict  and  sentence.  We  have  no  right  to  assume  otherwise  than 
that  each  decision,  on  its  own  particular  evidence,  was  right.  But, 
to  understand  the  decision  of  the  home  secretary,  the  testimony  on 
which  it  was  based  should  be  supplied. 

§  173.  But,  thirdly,  it  must  be  recollected,  that,  whatever  may 
be  thought  of  the  rightfulness  of  the  verdict  on  the  merits,  there 
was  at  no  time  any  question  as  to  the  propriety  of  the  rulings  of 
the  court.  These  rulings  were  the  subject  of  careful  consultation 
among  the  several  judges.  It  was  stated  by  Baron  Martin,  that 
the  rulings  expressed  their  deliberate-view,  and  that  it  was  not  likely 
to  be  changed  except  by  act  of  parliament.  The  challenge  thus 
thrown  out  has  not  been  accepted.  In  the  house  of  lords,  which,  as 
the  supreme  appellate  court  of  the  empire,  is  peculiarly  charged 
with  cognizance  of  such  issues,  the  only  expression  on  the  subject 
has  been  one  of  assent.  We  may  therefore  hold  it  to  be  established 
in  England,  that  the  doctrine  of  ''  moral  insanity,"  so  far  as  it 
involves  the  idea  of  irresponsibility  based  exclusively  on  moral  as 
distinguished  from  mental  derangement,  is  rejected  by  the  courts. 

§  174.  In  the  United  States,  there  is  almost  equal  judicial  unani- 
mity in  refusing  recognition  to  this  theory,  and  in  declar- 
So  in  the  *'  o  o  ,.  i     •         i    f. 

Uuited  ing  that  no  amount  of  derangement  of  morals  is  a  detence 

unless  accompanied  with  mental  insanity.     To  this  effect 
are  decisions  in  Massachusetts,^  in  Maine,^  in  Connecticut,^  in  New 

'  Com.  V.  Rogers,  7  Mete.  500  ;  Com.  2  state  v.  Lawrance,  57  Me.  574. 

V.  Heath,  11  Gray,  303;  see  U.  S.  v.  »  State  v.  Richards,  39  Conn.  591  ; 

Holmes,    1    Clifford,    198;     U.   S.    v.  but   see  Anderson  v.  State,  43  Conn. 

Schultz,  6  McLean,  120.  514. 

166 


INSANITY   AS    A   DEFENCE    TO    CHARGE    OP   CRIME.       [§  175. 

York/  in  New  Jersey ,2  in  Delaware,^  in  Virginia,^  in  North  Caro- 
lina,^ in  Georgia,^  in  Ohio,^  in  California,^  and  in  other  jurisdic- 
tions where  the  question  has  been  mooted.^  In  Pennsylvania,  it 
is  true,  there  is  an  apparent  departure  from  this  current  of  authority 
by  the  acceptance,  in  a  case  already  cited,'"  of  "  moral  insanity"  as 
a  doctrine  that  could  be  under  certain  circumstances  sanctioned  by 
the  courts.  But  a  scrutiny  of  this  case  will  show,  that  Chief  Justice 
Lewis,  in  the  case  referred  to,  means  by  "  moral  insanity,"  not  the 
mania  sine  delirio  of  Pinel,  or,  as  here  defined,  moral  without 
mental  lunacy,  but  insanity  in  its  general  sense,  manifesting  itself 
in  irresistible  impulse.  His  views,  therefore,  are  in  accordance 
with  those  here  expressed. 

§  175.  The  nearest  advance  to  the  recognition  of  moral  insanity 
was  made  in  1864,  by  the  court  of  appeals  of  Kentucky.^'   ^^^    ^.^^ 
This  result  was  in  part  due  to  a  reaction  from  the  ex-  in  Ken- 

1-11  1  •  ^         ^      •  tucky. 

treme  to  which  the  courts  and  executive  had,  m  one  or 
two  noted  prior  cases,  gone  in  rejecting  the  defence  of  insanity 
almost  in  toto;  but,  be  this  as  it  may,  we  find  Robertson,  J.,  who, 
when  at  the  bar,  had  taken  bold  ground,  in  one  of  the  cases  last 
referred  to,  in  maintenance  of  moral  insanity,  now  maintaining  the 
same  position  on  the  bench.  "  Moral  insanity,"  he  tells  us,  "  is 
now  as  well  understood  by  medico-jurists,  and  almost  as  well  estab- 
lished by  judicial  recognition,  as  the  intellectual  form.'^     Mentally, 

'  Freeman   v.    People,  4    Denio,    9  ;  Ohio  St.  54),   "that   there   is    no  au- 

supra,    §    145.      Shorter   ?;.    People,    2  thority  for   holding   that   mere   moral 

Cornst.  193  ;  MoFarland's  case,  8  Abb.  insanity,  as  it  is  sometimes  called,  ex- 

Pr.  N.  S.  57;  Flanagan  v.  People,  52  onerates  from  responsibility."      S.  P. 

N.  Y.  467.  Judge  Cox's  charge  in  U.  S.  v.  Guiteau, 

2  State  V.  Spencer,  21  N.  J.  L.  196.  infra,  §  679. 

3  State  V.  Windsor,  5  Harr.  512.  '<>  See  supra,  §  158. 

«  Vance  v.  Com.,  2  Va.  Cases,  132.  i"  Smith  v.  Com.,  1  Duv.  224. 
5  State  V.  Brandon,  8  Jones,  L.  463.  '^  Xo    this    assertion,   Dr.    Chipley, 
8  Choice  V.  State,  31  Gra.  424.  medical  superintendent  of  the  Eastern 
^  State  v.  Gai-diner,  Wright,  0.  392 ;  Kentucky  Lunatic  Asylum,  makes,  in 
see  U.  S.   V.  Schultz,  6  McLean,  120  ;  the   American   Journal   of    Insanity   for 
Farrer  v.  State,  2  Ohio  St.  54.  July,  1866,  the  following  just  reply  : — 
8  People  V.   Coffman,    24   Cal.    230;  "  It  has  seemed  tome  that  it  is  not 
People  V.  McDonell,  47  Cal.  134.  an  unusual  thing  for  those  who  enter- 
8  The  courts,  in  varied  terms,  unite  tain    the   opinions    expressed    by    the 
substantially  in  declaring,  as  the  pro-  court,   to   claim   a  greater   weight    of 
position  is  stated  by  a  very  able  jurist,  authority  in  their  favor  than  is  war- 
Judge   Thurman    (Farrer   v.    State,    2  ranted  by  the  facts.     Judge  R.  says  : 

167 


§  175.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS. 

man  is  a  dualism  consisting  of  an  intellectual  and  a  moral  nature. 
.     No  enlightened  jurist  now  doubts  the  existence  of  such  a 


'  Moral  insanity  is  now  as  well  under- 
stood by  medico-jurists,  and  almost  as 
well  established  by  judicial  recogni- 
tion, as  the  intellectual  form.' 

"  It  is  to  be  feared  that  this  assertion 
has  been  derived,  not  from  an  exami- 
nation of  the  decisions  of  the  courts, 
but  from  the  declarations  of  active  par- 
tisans whose  wishes  are  father  to  the 
thought. 

"  So  far  as  I  have  been  able  to  ascer- 
tain, the  doctrine  of  moral  insanity 
has  not  been  recognized  in  the  courts 
of  England,  whence  we  have  drawn  our 
principles  of  law  ;  nor  in  the  courts  of 
this  country,  except  in  a  few  isolated 
instances.  Certainly  its  recognition 
has  not  been  generally  acceded  to  in 
the  higher  courts  of  either  country. 
Nor  is  there  any  greater  accord  among 
those  medical  men  whose  positions 
have  made  them  most  conversant  with 
all  forms  of  mental  maladies. 

"  The  doctrine  is  not  recognized,  for 
any  medico-legal  purposes,  by  a  major- 
ity of  the  members  of  this  association, 
to  whom  is  confined  the  care  of  almost 
all  the  insane  in  our  country. 

"While,  therefore,  it  remains  un- 
recognized in  the  courts  of  England, 
and  has  been  admitted  by  only  very 
few  judicial  authorities  in  our  own 
land  ;  and  while  it  is  repudiated,  as  a 
false  doctrine,  fraught  with  great  evil 
to  society,  by  a  majority  of  the  practi- 
cal psychologists,  known  to  us  to  be 
gentlemen  of  fidelity,  integrity,  and 
experience,  are  we  not  warranted  in 
entering  a  claim  to  the  weight  of  au- 
thority in  the  negative  ?  Certainly 
there  is  something  more  than  a  '  dis- 
sentient voice  occasionally  heard  from 
the  bench,  the  bar,  the  medical  pro- 
fession at  large,  and  from  those  who 

168 


claim  some  special  knowledge  of  insan- 
ity and  the  insane.' 

"  That  the  doctrine  is  advocated  by 
many  honest,  capable,  and  faithful  ob- 
servers, no  one  can  gainsay.  It  is  im- 
possible to  avoid  this  division  of  senti- 
ment on  any  scientific  or  professional 
question  not  absolutely  demonstrative 
in  its  character,  and  it  is  the  division 
of  sentiment  among  gentlemen  who  are 
ardently  seeking  truth,  and  the  im- 
portance of  the  subject,  which  bring  it 
so  frequently  to  the  surface  for  renewed 
examination.  There  is  here  no  partisan 
spirit,  but  a  sincere  desire  to  harmonize 
on  a  truthful  and  solid  basis. 

"  I  do  not  propose  to  discuss  the  ab- 
stract question  of  the  possibility  of  a 
perversion  of  what  are  called  the  moral 
powers,  or,  as  Professor  Upham  terms 
them,  the  sensibilities. 

"This  may  occur  from  ill-directed 
education,  from  habit,  evil  associations, 
and  the  absence  of  that  salutary  con- 
trol that  should  be  exercised  over  per- 
sons in  early  life,  which  make  men 
desperately  wicked.  But  the  practical 
question  for  us  is  this  :  Shall  such  per- 
versions free  one  from  legal  penalties 
while  the  intellectual  powers  are  un- 
impaired ?  In  the  school  of  morals  and 
the  forum  of  conscience,  I  will  readily 
admit  that  all  crimes  are  species  of 
insanity,  but  I  am  not  prepared  to 
admit  the  plea  of  insanity  as  an  excuse 
for  violations  of  law,  unless  it  can  be 
shown  that  there  is  a  congenital  or 
accidental  defect  of  those  powers  with 
which  the  Creator  has  endowed  man 
for  the  purpose  of  enabling  him  to  dis- 
criminate between  right  and  wrong 
and  to  choose  the  one  and  avoid  the 
other. 

"  In  this  discussion  it   is  important 


INSANITY    AF    A   DEFENCE    TO    CHARGE    OF   CRIME,       [§  175. 

type  of  moral,  contradistinguished   from   intellectual  insanity  as 
homicidal  mania,  or  morbid  and  uncontrollable  appetite  for  man- 


also  to  understand  what  is  meant  by 
moral  insanity.  If  we  accept  the  defi- 
nition of  some  of  its  advocates,  as  that 
of  the  learned  Dr.  Copland,  the  contro- 
versy is  at  an  end,  and  the  adjective 
'  moral'  may  be  very  properly  dropped 
from  medico-legal  science.  He  defines 
it  to  be  '  a  perversion  of  the  inclina- 
tion, temper,  etc.,  the  intellectual  fac- 
ulties being  more  or  less  weakened  or 
impaired.'  This  yields  all  for  which 
the  opponents  of  the  doctrine  contend. 
They  make  no  claim  to  any  special 
amount  of  intellectual  impairment,  but 
simply  insist  that  some  degree  of  men- 
tal unsoundness  is  required  to  free  one 
from  accountability  for  his  acts.  But 
the  term  is  not  generally  applied,  sim- 
ply because  the  mental  aberration  is 
manifested  chiefly  in  the  state  of  the 
feelings,  afi'ections,  temper,  habits,  and 
conduct  of  the  individual ;  bat,  in  the 
language  of  Dr.  Prichard,  who  is  said 
by  Dr.  Bucknill  to  have  been  '  the 
able  and  learned  inventor  of  moral 
insanity,'  it  denotes  'a  disorder  which 
affects  only  the  feelings  and  afi'ections, 
or  what  are  termed  the  moral  powers 
of  the  mind,  in  contradistinction  to  the 
powers  of  the  understanding  or  intel- 
lect.' It  is  in  this  sense  that  I  propose 
to  consider  the  doctrine. 

"Whenever,  therefore,  it  can  be 
shown  that  any  one  or  more  of  the  in- 
tellectual faculties  become  unsound 
from  disease,  the  case  is  at  once  re- 
moved from  the  category  of  moral  in- 
sanity. It  will  be  important  to  bear 
this  in  mind,  especially,  in  any  con- 
sideration that  may  be  given  to  the 
cases  that  have  been  so  repeatedly 
alleged  as  instances  of  pure  moral  in- 
sanity— cases  which  have  been  cited 
and  reproduced  so  frequently  that  they 
have  become  sufiiciently  worn  to  ex- 


pose the  fallacy  of  the  very  doctrine 
they  are  intended  to  support. 

"  In  order  to  determine  the  limits  of 
man's  responsibility,  it  is  important  to 
ascertain  the  foundation  of  his  ac- 
countability. Why  is  he  held  respon- 
sible for  his  acts  ? 

"On  this  topic,  I  do  not  intend  to 
enter  upon  any  metaphysical  disquisi- 
tion. Metaphysicians  are  not  agreed 
among  themselves,  in  the  views  they 
entertain.  They  are  all  prone  to  ana- 
lyze the  mind  into  great  departments, 
assigning  to  each  certain  functions  or 
powers.  Professor  Upham  says  :  '  The 
human  mind  exists  in  the  three  great 
departments  of  the  intellect  or  under- 
standing, the  sensibilities,  and  the 
will,'  and  he  declares  '  the  ofiice  of  the 
will  is  mandatory  and  executive.' 

"  Others,  with  more  reason  I  think, 
consider  the  will  as  a  mere  resulting 
power — the  mere  power  of  obeying  the 
dictates  of  the  understanding. 

"For  all  our  purposes,  the  mind  is 
in  entity  with  multiple  powers  of  mani- 
festation. 

"We  admit  that,  in  a  certain  sense, 
the  propensities  and  sentiments  are 
integral  portions  of  our  mental  consti- 
tution, and  that  they  are  liable  to 
irregular  and  deranged  action  ;  but  it 
does  not  follow  that  one  may  become 
iri'esponsible  for  his  acts  while  intellect 
remains  sound. 

"Man  is  not  made  accountable  be- 
cause he  is  endowed  with  propensities 
and  instincts  ;  these  he  has  in  common 
with  the  beasts  that  perish,  and  for 
whom  no  criminal  laws  are  enacted. 

"Man's  propensities  and  passions, 
and  their  liability  to  irregular  and  de- 
ranged action,  make  penal  statutes 
necessary  to  the  protection  of  society  ; 
but  he  is  held  accountable  only  because 

169 


§  176.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   KELATIONS. 

killing ;  and  pyromania,  or  the  like  passion  for  house-burning ; 
Meptomania,  or  an  irresistible  inclination  to  kill."  .  .  .  But, 
if  his  insanity  extend  no  further  than  a  morbid  perversion  and  pre- 
ternatural power  of  insane  passion,  or  emotion,  he  not  only  "knows 
right  from  wrong,"  but  knows,  also,  that  the  act  he  is  impelled  to 
do  is  forbidden  by  both  moral  and  human  law. 

§  176.  We  have  to  regret,  in  the  opinion  just  quoted,  an  am- 
biguity in  the  use  of  terms  which  makes  it  doubtful  whether  the 
"moral  insanity"  of  which  the  writer  speaks,  is  simply  the  "  irre- 
sistible impulse"  of  a  person  mentally  insane,  or  is  that  supposed 
state  of  moral  unsoundness  coexisting  with  mental  soundness  which 
the  technical  term  conveys.  If  the  former  was  intended,  the  deci- 
sion goes  no  further  than  those  sustained  in  previous  sections,  which 
declare  that  an  irresistible  impulse,  in  an  insane  person,  coercing 
crime,  is  a  defence  to  an  indictment  for  such  crime.  If,  however, 
Judge  Robertson  meant  more  than  this — if  his  purpose  was  to  say 
that  there  could  be  moral  insanity  coexisting  with  mental  sanity — 
then  we  must  remember  that  he  states  this  as  a  supposed  rendition 
of  medical  science,  and  that  his  opinion  is  simply  a  statement  of 
fact  as  to  which  it  will  be  seen  he  is  mistaken.     So  far  from  moral 

he  is    also   endowed  with  intellectual  and  to  choose  the  one  and  avoid  the 

faculties    and   a   free   rational  will  or  other  ;  or,  in  the  language  of  Judge  R., 

power  capable  of  regulating  and  con-  he  is  accountable  because  he  has   '  the 

trolling  the  sensibilities.  light   of   reason    to  guide  him  in  the 

"If  one  is  born  with  all  the  emo-  pathway  of  duty,  and  a/ree  and  raf/onaZ 

tional  endowments  of  our  nature,  but  presiding  will  to  enable  him  to  keep  that 

destitute   of  understanding,   his  irre-  way  in  defiance   of    all    passion   and 

sponsibility   is    unquestionable.      The  temptation.' 

same  is  true  when  the  faculties  of  the.  "  If,  then,  accountability  is  a  struc- 

understanding  are  perverted,  impaired,  ture  erected  solely  on  the  intellectual 

or  destroyed  by  disease.  power,  must  it  not  remain   unshaken 

"In  every  aspect   in  which  man's  so  long  as  its  foundation  is  sound  and 

accountability  is  viewed,  we  arrive  at  unbroken  ?     Is  it  not  illogical  to   set 

the  same  point,  that  its  sole  basis  is  out  with  the  fundamental  proposition, 

the   existence   and    soundness   of   the  that  man  is  made  responsible  for  his 

intellectual   powers — those   wonderful  acts  only  because  he  is  gifted  with  an 

endowments  which  so  eminently  dis-  understanding,  and  then  arrive  at  the 

tinguish    man    from    other     animals,  conclusion   that   he  may  become  irre- 

which  enable  him  to  discriminate  be-  sponsible  without  the    impairment  or 

tween  good  and  evil,  right  and  wrong,  disease  of  any  one  of  its  powers  ?" 

170  ^ 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OP   CRIME.       [§  178. 

insanity  in  this  sense  being  accepted,  it  is  repudiated  by  the  just 
weight  of  modern  psychological  opinion.^ 

§  177.  In  1869,  the  same  judge,  in  an  insurance  case,  where 
the  question  was  whether  an  insane  suicide  avoided  the  policy,  took 
occasion  further  to  enforce  these  views :  "  According  to  matured 
philosophy,  and  the  corroborating  authority  of  elementary  writers 
such  as  Prichard  and  Esquirol  and  Ray  and  Taylor,  and  of  many 
modern  adjudications,  both  British  and  American,  there  may  be 
moral  as  well  as  intellectual  insanity,  and  essentially  distinguished 
from  it.  When,  as  often  happens  from  congenital  malorganization 
or  supervenient  disturbance  of  the  normal  condition  of  a  '  sound 
mind  in  a  sound  body,'  the  senses  present  false  images  which  are 
accredited  7iecessarily  by  the  deluded  victim  as  intuitive  certainties, 
no  reasoning  or  proof  can  rectify  the  illusion  of  a  mind  in  such  ab- 
normal condition,  and,  consequently,  as  no  punitory  sanction  can 
prevent  the  effect  of  such  insane  delusion,  there  is  no  legal  respon- 
sibility. But,  while  the  senses  are  apparently  sound  and  true,  the 
affections  may  be  perverted  or  the  moral  sentiments  unhinged  in 
such  a  degree  as  to  subjugate  the  will  to  some  morbid  appetite  or 
ungovernable  passion,  and  thus  precipitate  against  the  will  insane  but 
conscious  wrong.  This  is  contra-distinctively  called  moral  insanity. 
Such  are  the  forms  of  monomania  entitled  kleptomania,  pyromania, 
nymphomania,  homicidal  mania,  etc.,  now  well  defined  and  recog- 
nized as  irresponsible  insanity.  Whether  and  how  far  these  two 
distinctive  forms  of  insanity  run  into  and  sympathize  with  each 
other  is  unknown.  But  generally  the  one  is  apparently  untinged 
by  the  other,  and  in  moral  dethronement  by  insane  passion  there 
may  be  no  delusion,  but  the  will  is  overwhelmed  by  delirious  pas- 
sion, which  it  can  neither  stifle  nor  successfully  resist."  It  was 
held,  therefore,  that  self-destruction  under  moral  insanity  was  such 
death  as  made  the  insurers  liable,  though  the  policy  contained  the 
usual  clause  of  avoidance  in  case  of  suicide.^ 

§  178.  But  the  authority  of  this  opinion  is  more  than  neutralized 
by  the  fact  that  it  was  delivered  in  a  divided  court,  assented  to  by 
two  judges,  and,  in  respect  to  the  question  of  moral  insanity,  dis- 
sented from  by  Chief  Justice  Williams  and  Judge  Harding.     "  In 

>  See  infra,  §§  531-678.  2  Ins.  Co.  v.  Graves,  6  Bush,  268  ;  1 

Big.  Ins.  Cas.  736. 

171 


§  183.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

all  the  vague,  uncertain,  intangible,  and  undefined  theories  of  the 
most  impracticable  metaphysician  in  psychology  or  moral  insanity," 
said  Williams,  C.  J.,  "no  court  of  last  resort,  in  England  or 
America,  so  far  as  has  been  brought  to  our  knowledge,  ever  before 
announced  such  startling,  irresponsible,  and  dangerous >  proposition 
of  law,  as  that  laid  down  in  the  inferior  court.  For,  if  this  be  law, 
then  no  longer  is  there  any  responsibility  for  homicide,  unless  it  be 
perpetrated  in  calm,  cool,  considerate  condition  of  mind.  What  is 
this  proposition  when  compressed  into  a  single  sentence  ?  That,  if 
his  '  intellect  was  unimpaired,  and  he  knew  it  was  forbidden  both 
by  moral  and  human  laws,'  yet,  if  at '  the  instant  of  the  act  his 
will  was  subordinated  by  any  uncontrollable  passion  or  emotion 
causing  him  to  do  the  act,  it  was  moral  insanity,  and  they  ought  to 
find  for  the  plaintiff.'  Concede  that  it  was  through  either  passion 
or  mortification  or  fear  of  disgrace  because  of  this  rumor,  and 
instead  of  killing  himself  he  had  killed  his  brother,  or  some  one 
else  whom  he  suspected  of  being  connected  with  the  rumor,  should 
this  transaction  of  mortification  or  fear  of  disgrace  have  exempted 
him  from  criminal  responsibility  ?  If  so,  then  indeed  the  more 
violent  the  passion  and  desperate  the  deed  the  more  secure  from 
punishment  will  be  the  perpetrator  of  homicide  or  other  crimes. 
The  doctrine  of  moral  insanity,  ever  dangerous  as  it  is  to 
the  security  of  the  citizen's  life,  and  pregnant  as  it  is  with  evils  to 
society,  has  but  little  or  no  application  to  this  case.  Too  uncertain 
and  intangible  for  the  practical  consideration  of  juries,  and  unsafe 
in  the  hands  of  even  the  most  learned  and  astute  jurist,  it  should 
never  be  resorted  to  for  exemption  from  responsibility  save  on  the 
most  irrefragable  evidence,  developing  unquestionable  testimony  of 
that  morbid  or  diseased  condition  of  the  affections  or  passions  so  as 
to  control  and  overpower  or  subordinate  the  will  before  the  act  com- 
plained of ;  for,  if  the  act  is  to  be  evidence  of  moral  insanity  for  the 
suicide,  so  it  will  be  for  the  homicide,  the  parricide,  and  the  seducer 
and  the  ravisher." 

[§§  179-182  are  omitted  in  this  edition  as  superseded  by  other 
material.] 

§  183.  Irresponsibility  from  a  supposed  moral  derangement,  un- 

Anaiysis  of   accompanied  with  mental  insanity,  is  a  defence  on  which, 

?^^u'i^'°"^i     at  the  risk  of  repetition,  it  is  important  to  dwell  with 

insanity."     some  minuteness.     It  is  to  be  met  with  in  three  ways: 

172 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  184. 

first,  psychologically,  by  showing,  as  will  hereafter  be  clone, ^  that 
by  sound  psychological  analysis  such  a  position  is  untenable ; 
secondly,  practically,  by  proving  that  a  careful  induction  gives  us 
no  basis  of  fact  on  Avhich  such  a  theory  can  be  supported  -^  and, 
thirdly,  judicially ,3  by  showing  that  the  position  is  repudiated  by 
the  courts,  and  that,  on  the  principles  of  philosophic  jurispru- 
dence, it  cannot  safely  be  maintained. 

§  184.  On  the  last  point,  as  above  stated,  a  few  observations 
may  now  be  made. 

First,  as  to  the  consistency  of  this  doctrine  with  the    jnconsis- 
safety  of  the  community,  which  is  one  of  the  prime  ob-    3^°*^^^^ 

iects  of  all  penal  law.  commu- 

.  nity. 

In  the  mediaeval  jurisprudence,  the  clergy  were  ex- 
empted from  the  operation  of  the  secular  law.  Great  evils  resulted 
from  this  ;  the  authority  of  the  civil  arm  was  weakened,  and  the 
clergy  themselves  were  demoralized.  But  for  this  position,  mon- 
strous as  it  was,  there  was  some  faint  excuse  at  the  time  it  was 
introduced.  The  clergy,  it  was  said,  were  good  men,  and  they 
were  subject  to  ecclesiastical  discipline  which  was  prompt,  exhaus- 
tive, and  severe.  But  the  proposition  now  is  to  exempt  from  the 
operation  of  penal  law  a  class  of  men  whose  plea  for  this  distinction 
is  that  they  are  eminently  had^  and  that  there  is  no  other  discipline 
to  which  they  can  be  subjected.  If  they  are  mentally  insane — if 
they  are  destitute  of  reason — then  there  is  good  ground  for  penal 
irresponsibility.  But  if  they  are  not  mentally  insane — if  they  are 
possessed  of  reason — if  their  only  plea  is  their  excessive  badness — 
then  this  badness  will  be  intensified,  and  rendered  all  the  more 
turbulent  and  desperate  by  the  very  intellectual  sanity  which  it  is 
conceded  that  the  actors  possess,  and  which  will  readily  instruct 
them  that  they  are  privileged  by  the  state  to  plunge  irresponsibly  into 
any  excesses  they  may  desire.  If  they  were  destitute  of  reason, 
their  irresponsibility  would  be  a  less  grievance.  They  would  be 
like  the  savage  to  whom  powder  is  given,  but  who  does  not  know 
how  to  contrive  means  for  using  it  to  destroy  others.  But,  being 
possessed  of  reason,  they  are  able  to  use  their  irresponsibility  as  an 
immunity  for  every  crime.     And  what  is  to  be  done  with  them  ? 

'  Infra,  §§  533-539.  8  gge  supra,  §  163,  for  a  particular 

*  Infra,  §§  552-572.  enumeration  of  the  adjudicated  cases. 

173 


§  185.]      MENTAL    UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 

Confinement  in  a  lunatic  asylum,  is  the  answer.  But  such  confine- 
ment is  difficult,  (1)  from  the  skill  with  which  reason  can  create 
counter-proof,  and  can,  when  there  is  an  object  for  it,  suppress  or 
conceal  passion,  and  (2)  from  the  enormous  expense  and  trouble 
which  would  attend  the  incarceration  of  so  large  a  number  of 
patients  as  is  here  supposed.  But  can  such  persons  be  justly,  on 
this  hypothesis,  incarcerated  ?  How  does  incarceration  differ  from 
imprisonment  ?  And  what  is  imprisonment  but  punishment  ?  And 
what  would  such  punishment  be  but  a  penal  discipline  imposed  com- 
pulsorily  by  the  law  ?  The  difference  between  such  penal  discipline, 
and  that  which  the  law  now  applies  on  conviction  of  a  crime,  is 
simply,  that  in  the  first  case  the  offender  is  tried  for  being  generally 
bad  ;  in  the  second,  he  is  tried  for  a  specific  bad  act.  But  he  can- 
not be  tried  for  being  generally  bad,  unless  he  is  responsible.  We 
are  therefore  reduced  to  the  dilemma  either  of  allowing  such  per- 
sons to  roam  at  large,  or  of  confining  them,  which  assumes  their 
responsibility. 

§  185.  Again,  it  is  the  duty  of  the  state  to  require,  on  the  part 
of  all  persons  endowed  with  reason,  the  exercise,  under 

State  must  ,,..,.  „         ,  .        ,,         ^^  ,  .   , 

enforce  ex-  penal  discipline,  01  such  reason,  in  all  matters  which  con- 
reason"^  cern  the  safety  and  health  of  the  body  politic.  The 
state,  in  this  respect,  is  a  delicate  machine,  over  whose 
mechanism  every  rational  man  has  more  or  less  control.  It  may 
seem  hard,  to  adopt  the  analogy  of  a  railroad,  to  make  it  an  indicta- 
ble offence  for  a  brakeman  simply  to  fall  asleep  at  his  post,  or  for 
the  acting  superintendent  of  a  great  corporation  not  to  construct  a 
time-table  sufficiently  lucid  and  accurate  to  prevent  possible  colli- 
sions. It  may  seem  a  hard  thing  to  shoot  an  admiral  of  acknowl- 
edged bravery  for  indecision  in  action,  or  to  cashier  and  imprison 
an  engineer  for  a  slight  miscalculation  as  to  the  thickness  of  an 
iron  plate.  Yet  we  all  feel  the  necessity  of  such  hardness  for  the 
purpose  of  educating  men  at  large  in  the  exercise  of  all  their  facul- 
ties when  in  discharge  of  public  trusts.  It  is  such  discipline  alone 
that  makes  railway  travel  practicable,  and  that  prevents  a  nation's 
life  from  being  carelessly  sacrificed  in  war.  Reason,  in  such  cases, 
is  called  forth,  nerved,  and  pointed,  by  the  penalty  the  law  imposes 
on  its  action.  One  of  the  chief  functions  of  law  is  to  educate  by 
penalty.  Law  cannot,  except  in  certain  very  rare  cases,  command 
a  thing  to  be  done.  It  can  only  punish  when  the  thing  is  not  done, 
174 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  186. 

or  when  a  positive  wrong  is  committed.  Nor  can  it  thus  punish  by 
precept,  or  by  mere  expression  of  disapprobation.  It  must  punish, 
if  it  do  so  at  all,  by  penal  discipline  ;  and  this  discipline,  to  have  a 
moral  effect,  must  be  executed  as  announced.  In  other  words, 
supremacy  of  reason  over  passion,  on  the  part  of  all  persons  possess- 
ing such  reason,  is  essential  to  the  safety  of  the  state  ;  and  the 
state  is  bound  to  educate  its  subjects  to  the  exercise  of  their  reason 
to  this  extent.  It  needs  careful  engineers,  careful  sailors,  careful 
superintendents,  and  careful  workmen  ;  and,  to  create  this  careful- 
ness, it  must  impose  penalties  on  carelessness.  A  fortiori,  there- 
fore, if  it  needs,  among  those  concerned  with  its  machinery,  the 
capacity  to  control  passion  by  reason,  must  it  impose  penalties  on 
the  yielding  of  reason  to  passion.  This  subordination  among  its 
subjects,  it  is  one  of  the  highest  offices  of  the  state  to  create ;  but 
its  only  direct  process  for  this  purpose  is  by  penal  discipline.  This 
may,  in  some  cases,  work  hardly,  as  it  may  do  in  the  cases  of  rail- 
way carelessness  we  have  just  noticed.  But,  in  the  one  case  as 
in  the  other,  it  is  the  idea  of  respo7isihility  that  must  be  implanted 
in  each  breast ;  and  this  can  only  be  done  by  exacting  responsibility 
among  persons  possessed  with  reason,  as  a  general  and  absolute 
rule. 

§  186.  Then,  as  to  the  eflfect  of  these  views  on  the  individual 
himself.  If  scrutinized  carefully,  the  doctrine  of  the  Nottore- 
indissolubility  of  the  connection  between  reason  and  -^J^f^^ 
responsibility  can  give  no  ground  of  personal  complaint,  courage  it. 
Even  among  "'  moral  lunatics"  there  is  no  one  of  whom  we  can  say 
that,  in  the  earlier  stages  of  his  life,  he  might  not  have  been  taught 
self-control.  It  would  be  a  most  cruel  thing  for  a  parent  to  say  to 
a  young  child,  "  you  are  so  bad  that  I  will  not  try  to  reform  you." 
And  it  would  be  an  equally  cruel  and  destructive  thing  to  say, 
"  for  the  wrong  you  do  I  will  not  correct  you."^  This  would  be 
the  sure  course  to  bring  up  an  irreclaimable  class  of  bad  men. 
But,  while  it  is  one  of  the  chief  peculiarities  of  Christianity  to 
teach  that  no  sinners  are  irreclaimable,  so  it  is  one  of  the  most 
merciful  offices  of  government  to  say  to  all  men  that  they  can  be 
reclaimed.  To  rational  beings  who  are  supposed  to  have  subordi- 
nated their  reason  to  their  passions,  we  can  imagine  no  more  humane 

»  See  supra,  H  115-118  ;  infra,  U  403,  539. 

175 


§  188.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

counsel  to  be  spoken  than  this  :  "  There  is  no  such  thing  as  irre- 
sponsibility among  those  possessed  of  reason  ;  you  will  certainly 
be  punished  if  you  break  the  law."  The  doctrine,  on  the  other 
hand,  that  irreclaimable  guilt  is  irresponsible,  is  the  sure  way  to 
make  irreclaimable  guilt. 

§  187.  And  again,  even  assuming  their  responsibility,  which  on 
Imprison-  ^^^  hypothesis  cannot  be  assumed,  to  imprison  "  moral 
"?^'^*  lunatics"  on  the  charge  of  beino;  "  bad,"  instead  of  mak- 

should  a  o  ' 

depend  on  ing  imprisonment  dependent  on  conviction  for  a  specific 
of  specific  crime,  would  be  subversive  of  one  of  the  primary  features 
crime.  of  Anglo- American  jurisprudence.     As  an  illustration  of 

this  we  may  mention  the  means  proposed  by  Dr.  Thomson,  surgeon 
to  the  General  Prison  for  Scotland,  whose  argument  in  favor  of 
distinctive  moral  insanity  is  elsewhere  noticed.  Feeling  the  em- 
barrassment of  holding  that  a  class  of  "  moral  lunatics,"  such  as  he 
describes,  should  be  emancipated  from  criminal  discipline  in  its 
ordinary  sense,  he  seeks  to  relieve  himself  by  a  proposal  not  unlike 
that  adopted  in  Turkey  when  it  is  thought  desirable  to  crush  out  a 
rival  family.  "  Moral  insanity,"  he  holds,  is  transmitted  by  sexual 
propagation  ;  and  hence  "  moral  lunatics,"  or  the  incurably  wicked, 
are  to  be  kept  from  having  children.  But  how  ?  By  the  Turkish 
method  ?  For  this  more  summary  and  inexpensive  process.  Dr. 
Thompson  is  not  quite  prepared.  Another  remedy,  however,  is 
preferable,  imprisonment  during  puberty.  "  Why,"  he  asks, 
"  should  they  go  to  prison  for  short'  periods  only,  to  be  sent  out 
again  in  renovated  health,  to  propagate  a  race  so  low  in  physical 
organization?"  He  afterwards  proposes,  for  such  cases,  imprison- 
ment for  life.  The  latter,  no  doubt,  is  the  only  safe  alternative,  if 
we  accept  the  doctrine  of  moral  insanity.  The  dilemma,  therefore, 
may  be  thus  stated :  if  we  accept  the  doctrine  of  moral  insanity, 
we  must  imprison  the  "  moral  lunatics"  for  life,  on  charge  of  being 
generally  bad ;  if  we  reject  this  doctrine,  we  submit  such  persons 
to  ordinary  penal  discipline.  But  the  first  alternative  is  both  cruel 
and  incompatible  with  Anglo-American  jurisprudence.  We  must 
therefore  take  the  second. 

§  188.  Nor,  finally,  can  it  be  said  that  there  are  some  men,  who, 
-,     -  while  possessed  of  reason,  are  incapable  of  moral  sense. 

Moral  sense  ^  . 

to  be  built     and  who  are  consequently  to  be  withdrawn  from  the 
ordinary  operations  of  penal  discipline.     We  have  al- 
176 


INSANITY    AS    A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  189. 

ready  noticed  the  cruelty  of  this  position  to  the  persons  thus  de- 
scribed, and  the  repugnance  of  the  mode  of  imprisonment  it  pro- 
poses to  the  principles  of  Anglo-American  Jurisprudence.  It  is 
enough  now  to  say  that,  where  the  state  does  noi  find  amoral  sense, 
it  is  its  duty  to  create  one.  That  there  is,  among  rational  beings, 
a  moral  sense  always  coexisting  with  reason,  it  is  not  necessary 
here  to  maintain  ;  and  it  may  be  enough,  for  this  purpose,  to  refer 
to  the  impressive  exposition  of  this  view  published  by  a  great  Eng- 
lish thinker  lately  (1872)  deceased.^  But,  if  we  assume  that  there 
is  no  such  moral  sense,  then  comes  in  the  position  just  noticed,  that 
'the  moral  sense  which  the  state  does  noi  find  it  must  huild  u-p? 

§  189.  Even,  therefore,  should  we  assume  that  there  are  cases 
in  which  there  is  no  moral  sense  or  conscience,  and  in    Efficiency 

which  the  individual  so  constituted  is  left  to  the  control    of  penal 
.  ,  .  discipline 

of  his  appetites  and  passions  alone,  it  does  not  follow  fortius 
that  punishment  is  not  to  be  imposed.  No  more  strenu-  P'^'p^"®- 
ous  advocates  of  punishment  are  to  be  found  than  among  the  phi- 
losophers who  deny  the  existence  of  conscience.  To  except,  they 
argue,  those  whose  moral  sense  is  perverted  or  extinct,  is  to  except 
the  very  class  for  whose  benefit,  as  well  as  for  the  safety  of  the 
community,  the  law  is  required.^  But  we  must  go  beyond  this  and 
hold  that  wherever  there  is  reason  there  is  responsibility,  and 
wherever  there  is  responsibility  there  the  wrong-doer  is  to  be  pun- 
ished as  a  matter  of  justice  in  proportion  to  his  Avrong.^ 

'  "The   Conscience;"    Lectures   on  is   not   in   all   respects   normal  in  its 

Casuistry,  delivered  in  the  University  action,  and  yet   he  is    responsible  for 

of  Cambridge,  by  F.  D.  Maurice.     2d  his    acts.      Many   of    the   insane    are 

Edition,  1872.  clearly  irresponsible,  and  their  punisli- 

2  See  also  infra,  §  486.  ment  is  demanded  only  by  the  imjjera- 

3  Bee  also  supra,  §  115  ;  and  infra,  §  five  necessity  which  exists  of  securing 
403.  the    safety   of   society   by   preventing 

*  Wh.  Cr.  L.  8th  ed.  §  1  e<  seq.  their  committing  criminal  acts.     This 

In  the  International  Review  for  Octo-  should  be  done  in  that  way  which  ex- 

ber,  1881,  is  a  valuable  article  by  Dr.  perience  shows  is  most  conducive  to  the 

Hammond  on  tlie  "  Punishability  of  the  accomplishment   of  the   end    in  vievr, 

Insane,"  from  which  the  following  is  even  if  it  involves  the  taking  of  the 

extracted : —  life   of    the    lunatic.      But    tliere    are 

"An    individual  may   be   medically  others,  people  with  morbid  impulses — 

insane,  and  yet  not  a  lunatic  in  a  legal  with  delusions  as  to  their  mission  as 

sense.     His   brain  is  diseased,  either  reformers,    messengers   of    God,    etc.  ; 

temporarily  or  permanently  ;  his  mind  with   intense   egotism   and   desire    for 

VOL.  I.— 12  177 


§  191.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 


While  experts  may  he  called  to  testify  as  to  states  of  mind  and 
conditions  of  health,  it  is  for  the  courts  to  declare  whether  such 
states  and  conditions  constitute  irresponsibility . 

§  190.  Such,  as  the  preceding  pages  have  indicated,  has  been 
the  general  practice  both  in  England  and  the  United 
States.  In  1870,  however,  in  the  supreme  court  of  New 
Hampshire,  a  case^  was  decided  by  which  this  position 
was  in  some  measure  assailed.  The  defendant,  Pike, 
was  tried  before  Perley,  C.  J.,  and  Doe,  J.,  for  murder 
in  perpetrating  robbery.  One  of  the  defences  appears  to  have 
been  "  dipsomania,"  and  on  the  trial  the  court  instructed  the  jury 
that  "  whether  there  is  such  a  mental  disease  as  dipsomania,  and 
whether  defendant  had  that  disease,  and  whether  the  killing  of 
Brown  was  the  product  of  such  disease,  were  questions  of  fact  for 
the  jury." 

§  191.  In  the  supreme  court,  this  was  affirmed,  Smith,  J.,  say- 
ing :     "  This  was  correct.     If  there  are   any  diseases  whose  ex- 


Such  the 
general 
rule.     Ex- 
ception in 
New 
Hamp- 
Bhire. 


notoriety,  manifestly  abnormal  in  char- 
acter ;  with  tendencies  toward  the 
performance  of  eccentric  and  unusual 
acts  ;  with  a  total  disregard  for  the 
restraints  upon  individual  indulgence 
which,  a  decent  sense  of  the  opinions 
of  mankind  requires  ;  of  excessively- 
developed  passions,  which  lead  them 
to  the  commission  of  various  bestial 
crimes — but  who  nevertheless  show 
little  or  no  want  of  intellectual  power 
(indeed  this  is  often  above  the  aver- 
age), who  transact  their  every-day 
routine  work  with  regularity  and  pre- 
cision, and  who  reason  logically  and 
clearly  on  the  subject  of  their  particu- 
lar point  of  aberration.  Such  people 
are  medically  insane ;  their  mental 
processes  are  radically  different  from 
those  of  mankind  in  general ;  there  is 
some  defect,  inherent  or  acquired,  in 
the  organization  of  their  nervous,  sys- 
tems ;  and  the  medical  expert  who 
■goes  into  court  and  testifies  to  the  fact 
of  their  insanity  is  entirely  justified, 

178 


by  the  accumulated  experience  of  those 
most  competent  to  know,  in  so  doing. 
They  are  insane  from  a  medical  stand- 
point, but  they  know  right  from  wrong  ; 
they  know  legal  acts  from  illegal  ones  ; 
they  are  able  at  some  time  at  least  to 
control  their  propensities,  and  their 
delusions  may  be  entirely  without 
reference  to  the  alleged  criminal  act 
they  may  have  committed.  While  a 
knowledge  of  right  and  wrong  can  never 
be  properly  regarded  as  a  test  of  insanity, 
it  is  a  test  of  responsibility ;  and  by  knowl- 
edge of  right  and  wrong  is  not  meant  the 
moral  knowledge  that  a  particular  act  would 
be  intrinsically  right  or  wrong — in  other 
words,  a  sin — but  that  it  would  be  contrary 
to  law.  In  reality,  however,  the  indi- 
vidual may  not  even  have  this  knowl- 
edge ;  but  he  must  have,  in  order  to 
make  him  responsible,  the  mental 
capacity  to  have  it."  See  also  15  Am. 
L.  Rev.  717. 

'  State  V.  Pike,  49  N.  H.  399. 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  191. 

istence   is    so    much    a   matter  of  history  and   general   Opinion  in 

,  ,     ,  ,  ,  ,  •,    •       this  case. 

knowledge   that   the   court  may  properly  assume   it  in    state?;. 

charging  a  jury,  dipsomania  certainly  does  not  fall  within      ^  ®' 
that  class.      The  court  do  not  profess  to  have  the  qualifications  of 
medical  experts.     Whether  there  is  such  a  disease  as  dipsomania 
is  a  question  of  science  and  fact,  not  of  law." 

In  an  opinion,  delivered  in  the  same  case,  and  supporting  the 
same  view.  Doe,  J.,  went  still  further:  "Whether  the  old  or  the 
new  medical  theories  are  correct,"  he  says  in  the  course  of  his 
argument,  "  is  a  question  of  fact  for  the  jury  ;  it  is  not  the  business 
of  the  court  to  know  whether  any  of  them  are  correct."  "  It  is 
often  difficult  to  ascertain  whether  an  individual  had  a  mental  dis- 
ease, and  whether  an  act  was  a  product  of  that  disease;  but  these 
difficulties  arise  from  the  nature  of  the  facts  to  be  investigated,  and 
not  from  the  case  ;  they  are  practical  difficulties  to  be  solved  by 
the  jury,  and  not  legal  difficulties  for  the  court."  "  To  say  that 
the  expert  testifies  to  the  tests  of  mental  disease  as  a  fact,  and  the 
judge  declares  the  test  of  criminal  responsibility  as  a  rule  of  law, 
is  only  to  state  the  dilemma  in  another  form.  For,  if  the  alleged 
act  of  a  defendant  was  the  act  of  his  mental  disease,  it  was  not  in 
law  his  act,  and  he  is  no  more  responsible  for  it  than  he  would  be 
if  it  had  been  the  act  of  his  involuntary  intoxication,  or  of  another 
person  using  the  defendant's  hand  against  his  utmost  resistance  ;  if 
the  defendant's  knowledge  is  the  test  of  responsibility  in  one  of 
these  cases,  it  is  the  test  in  all  of  them.  If  he  does  know  the  act 
to  be  wrong,  he  is  equally  irresponsible  whether  his  will  is  over- 
come, and  his  hand  used,  by  the  irresistible  power  of  his  own  mental 
disease,  or  by  the  irresistible  power  of  another  person.  When 
disease  is  the  propelling,  uncontrollable  power,  the  man  is  as  inno- 
cent as  the  weapon — the  mental  and  moral  elements  are  as  guiltless 
as  the  material.  If  his  mental,  moral,  and  bodily  strength  is  sub- 
jugated and  pressed  to  an  involuntary  service,  it  is  immaterial 
whether  it  is  done  by  his  disease,  or  by  another  man,  or  a  brute, 
or  any  physical  force  of  art  or  nature  set  in  operation  without  any 
fault  on  his  part.  If  a  man  knowing  the  difference  between  right 
and  wrong,  but  deprived,  by  either  of  those  agencies,  of  the  power 
to  choose  between  them,  is  punished,  he  is  punished  for  his  inability 
to  make  the  choice — he  is  punished  for  incapacity  ;  and  that  is  the 
very  thing  for  which  the  law  says  he  shall  not  be  punished.     He 

179 


§  193.]       MENTAL    UNSOUNDNESS   IN   ITS    LEGAL    RELATIONS. 

might  as  well  be  punished  for  an  incapacity  to  distinguish  right 
from  wrong,  as  for  an  incapacity  to  resist  a  mental  disease  which 
forces  upon  him  its  choice  of  the  wrong.  Whether  it  is  a  possible 
condition  in  nature  for  a  man  knowing  the  wrongfulness  of  an  act 
to  be  rendered  by  mental  disease  incapable  of  choosing  not  to  do  it 
and  of  not  doing  it,  and  whether  a  defendant  in  a  particular  instance 
has  been  thus  incapacitated,  are  obviously  questions  of  fact.  But, 
whether  they  are  questions  of  fact  or  of  law,  when  an  expert  testi- 
fies that  there  may  be  such  a  condition,  and  that,  upon  personal 
examination,  he  thinks  the  defendant  is,  or  was,  in  such  a  condi- 
tion— that  his  disease  has  overcome,  or  suspended,  or  temporarily 
or  permanently  obliterated,  his  capacity  of  choosing  between  a 
known  right  and  a  known  wrong — and  the  judge  says  that  knowl- 
edge is  the  test  of  capacity,  the  judge  flatly  contradicts  the  expert. 
Either  the  expert  testifies  to  law,  or  the  judge  testifies  to  fact. 
From  this  dilemma,  the  authorities  afford  no  escape. 

"  The  whole  difficulty  is,  that  courts  have  undertaken  to  declare 
that  to  be  law  which  is  a  matter  of  fact.  The  principles  of  the  law 
were  maintained  at  the  trial  of  the  present  case,  when,  experts 
having  testified  as  usual  that  neither  knowledge  nor  delusion  is  the 
test,  the  court  instructed  the  jury  that  all  tests  of  mental  disease 
are  purely  matters  of  fact,  and  that,  if  the  homicide  was  the  off- 
spring or  product  of  mental  disease  in  the  defendant,,  he  was  not 
guilty  by  reason  of  insanity." 

§  192.  Is,  then,  responsibility  a  question  of  fact,  to  be  determined 
by  the  jury  on  the  testimony  of  experts  ?  Is  the  judge,  on  issues 
of  insanity,  to  leave  the  whole  question,  including  that  of  responsi- 
bility, to  experts  to  decide,  telling  the  jury  that  they  are  to  accept 
the  experts'  rendering  ?  Is,  in  other  words,  the  "  test  of  criminal 
responsibility"  a  matter  of  fact,  to  be  deposed  to  by  experts,  and 
found  by  the  jury  on  their  testimony  ?  Such  are  the  questions 
that  are  involved  in  the  positions  just  stated,  and  which  are  now  to 
be  discussed. 

§  193.  It  is  conceded  by  the  learned  judge  who  delivered  the 

opinion  which  has  last  been  quoted,  and  which  maintains 

opinion  is      the  affirmative  of  the  points  just  stated,  that  the  views 

tionoHrre-   ^®  advances  are  in  conflict  with  the  great  body  of  Eng- 

sponsibiiity   ligfi  and  American  decisions  on  the  same  topic.     This, 

is  for  court.     .      „  .  .  .  „ 

in  fact,  will  be  abundantly  verified  by  an  inspection  of 
180 


INSANITY   AS    A    DEFENCE    TO    CHARGE    OP   CRIME.       [§  194. 

the  preceding  pages,  where  the  course  of  English  and  American 
judicial  precedent  in  this  relation  is  exhibited.  It  is  proposed  now 
to  pass  the  question  of  authority,  therefore,  as  one  that  does  not 
admit  of  dispute,  and  to  adduce  some  general  reasons  to  show  why, 
so  far  from  accepting  the  positions  which  have  been  so  ably  main- 
tained by  the  New  Hampshire  judges,  we  must  reaffirm  the  view 
already  announced — 'that,  while  experts  may  be  called  to  testify  as 
to  states  of  mind  and  conditions  of  health,  it  is  for  the  court  to 
declare  whether  such  states  and  conditions  constitute  irresponsi- 
bility. 

§  194.  First,  let  it  be  remembered  that  American  common  law 
courts  have  no  process  for  the  collection  of  the  opinions  ^.^  ,, 
of  experts  on  litigated  questions  of  criminal  responsi-  i^  obtain- 
bility.  A  case  comes  on  to  be  tried  in  one  of  our  crim-  expert 
inal  courts.  In  the  great  majority  of  our  jurisdictions  *^®  I'^o^y- 
there  is  no  law  by  which  a  commission  can  issue  to  take  the  deposi- 
tion of  witnesses  out  of  the  reach  of  local  process.  Even  in  those 
jurisdictions  where  such  a  law  exists,  there  is  no  reported  case  of  a 
witness,  residing  at  a  distance,  being  examined  by  deposition. 
Indeed,  even  where  this  is  technically  legal,  the  step  is  one  which 
parties  would  be  very  unlikely  to  take.  An  expert,  in  order  to 
give  an  opinion  to  which  the  jury  will  attach  weight,  must  visit  the 
patient  personally.  Hence  it  is  that  practically,  in- seeking  for 
experts,  the  parties  are  limited  to  those  whom  they  can  produce  on 
trial.  Of  course,  when  there  is  wealth,  or  when  the  state  makes, 
as  it  very  rarely  does,  suitable  provision,  experts  may  be  brought 
from  a  distance.  But,  whether  brought  from  a  distance  or  taken 
from  the  immediate  neighborhood,  they  are  open  to  the  very  serious 
objection  that  they  are  unofficial  persons  selected  by  the  party  call- 
ing them  because  their  preascertained  views  will  serve  that  party's 
necessities.^  For  we  have  in  none  of  our  states  governmental 
boards  of  experts,  chosen  as  independent  arbiters,  on  the  same 
basis  as  our  courts  of  law.  Hence  it  is  that  the  experts,  whose 
testimony  the  jury  are  to  take,  are  simply  volunteer  theorists. 
So  far  as  concerns  the  defendant,  they  are  called  by  him  because, 

1  See   infra,  §   295.     See    an    article     partly  by  the  parties,  in  30  Am.  Journ. 
advocating  a  commission  of  experts  to     Ins.  312. 
be  appointed  partly  by  the  court  and 

181 


§  195.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

from  their  opinions  already  advanced,  their  views  favor  his  defence* 
It  is  by  the  defence,  indeed,  that  testimony  of  experts,  in  issues  of 
insanity,  is  mainly  produced.  It  is  natural  that  it  should  be  so, 
for  not  only  is  the  burden  of  proof  on  the  defence,  but  the  interest 
the  defendant  has  at  stake  is  so  enormous  that  his  whole  energies, 
and  his  entire  estate,  as  well  as  the  full  professional  nerve  and 
pride  of  his  counsel,  will  be  exhausted  in  bringing  his  case  fully 
before  the  court.  Just  so  far  as  the  prosecution  takes  an  interest 
in  the  case — ^just  so  far  as  it  believes  in  the  baselessness  of  the 
defence — -is  it  liable  to  be  influenced  by  the  same  zeal.  But  there 
is  here  a  difference  between  the  position  of  the  defence  and  that  of 
the  prosecution.  The  defence  springs  its  witnesses,  if  not  its  par- 
ticular point  of  reliance,  on  the  prosecution.  The  prosecution  has 
generally  to  reply,  as  best  it  can,  with  any  testimony  which,  at  the 
moment  and  spot,  it  can  catch  up. 

§  195.  But,  be  this  as  it  may,  each  party  has  certain  theories  to 

be  proved,  and  each  party  looks  around  for  experts  to 
monyTs^*^"  prove  such  theories.  Now,  it  so  happens,  that  there  is 
partial  and    scarcely    a    single    hypothesis    as    to    responsibility,  no 

matter  how  wild,  which,  among  the  large  number  of 
experts  who  have  concerned  themselves  with  this  branch  of  study, 
has  not  its  advocates.  Some  particular  hypothesis  is  a  convenient 
one  for  the  emergencies  of  the  case,  and  consequently  the  expert 
who  believes  it  is  sought  out  and  summoned.  But  he  and  the  few, 
as  it  may  be,  who  agree  with  him  are  summoned  alone.  The  great 
mass  of  experts,  embracing  ninety-nine  hundredths  of  the  entire 
body,  are  left  uncalled.  There  is  undoubtedly  one  good  physical 
reason  for  this.  No  court-room,  though  as  large  as  the  Roman 
amphitheatre,  could  hold  all  those  who  on  this  topic  have  fair 
claims  to  be  considered  experts.  No  state  treasury  would  attempt 
the  expense  of  their  maintenance  and  remuneration  during  the  very 
protracted  investigations  that  would  ensue.  No  court  would  have 
time  for  such  trials  ;  and,  indeed,  it  would  be  impossible  to  tell  how 
long  such  a  suit  would  continue.  No  humane  government  would 
permit  a  course  which,  by  thus  confining  all  the  experts  of  the  land 
(even  if  we  stopped  here)  in ,  one  spot,  for  an  indefinite  period, 
would  leave  their  innumerable  patients  and  Avards  for  so  long  a  time 
without  guidance.  But,  independently  of  this  objection,  reason 
182 


INSANITY   AS   A   DEFENCE   TO   CHARGE   OF   CRIME.      [§  196. 

enough  for  a  narrow  selection  is  found  in  the  fact  that  each  party 
calls  only  the  experts  that  -will  prove  his  case,  and  no  more.^ 

§  196.  Now,  how  has   this   practically  resulted  ?     We   believe 
that  the  reports  of  our  criminal  trials  show  that  wherever   Extrava- 
it  is  necessary  to  rely  on  some  extravaorant  and  unique   gance  of 

•^  ''  .  the  theories 

psychological  theory  to  make  out  a  defence,  this  theory  it  brings 
will  be  sustained  by  experts.  Thus,  in  a  remarkable 
Kentucky  case,  hereafter  to  be  more  fully  noticed,^  it  was  testified 
by  experts,  and  apparently  without  contradiction,  that  all  persons 
committing  suicide  are  insane,  and  that  consequently  (a  conclusion 
in  which  fortunately  the  court  did  not  coincide),  the  exception  of 
suicide  in  life-insurance  policies  is  a  nullity.  So  in  the  case  of 
Arthur  O'Connor,  who  was  tried  in  London,  in  April,  1872,  for  an 
assault  on  the  queen.  Dr.  Tuke  testified  to  the  prisoner's  insanity, 
because  he  had  no  sense  of  his  situation,  and  because  he  "  argued 
in  a  circle,"  which  facts  were  declared  by  an  opposite  medical  ex- 
pert to  prove  just  the  contrary,  while  Dr.  Sheppard,  Professor  of 
Psychological  Medicine  in  King's  College,  and  head  of  the  Colney 
Hatch  Asylum,  announced,  in  an  article  in  the  Lancet^  that  Dr. 
Tuke's  position  was  "monstrous."  In  Andrews'  case,^  where  the 
defence  was  mania  transitoria,  one  physician  (a  gentleman  highly 
respectable,  but  standing  almost  alone  on  this  question)  was  brought 
to  testify  to  the  psychological  soundness  of  the  defence  ;  while  the 
prosecution  limited  itself  to  but  one  expert  in  reply,  though  it  could 
have  found  a  thousand  to  indorse  what  that  expert  said.  So  in  the 
case  now  immediately  before  us,  "  dipsomania"  is  spoken  of  as 
proved  by  medical  experts ;  and  it  is  said  to  be  the  law  that  if  these 
experts  declare  that  there  is  such  a  disease  as  "  dipsomania,"  and 
that  "dipsomania"  confers  irresponsibility,  then  the  defendant  is 
irresponsible.^     But   what   experts  ?     Who    are    to    declare  this  ? 

'  See   infra,   §§    275,  293.     See   also  knowing  he  wonld  not  go  far  enough, 

articles   in  35  Am.  Journ.  Ins.,  pp.  1,  Scientific  evidence,  he  says,  is   always 

375.     A  curious  proof  of  this  will  be  hampered  when  given  by  way  of  ques- 

found  in  an  article  by  Dr.  Yellowlees  tion  and  answer. 

on  Barr's  trial,  22  Journ.  Ment.  Sci.,  *  Ins.    Co.   v.  Graves,  6  Bush,  268  ; 

p.  235.     He  tells  us  that,  testifying  as  infra,  §  236. 

an  expert,  neither  side  asked  his  opin-  '  Supra,  §  162. 

ion  as  to  the  prisoner's  power  of  self-  *  The  unsoundness  of  the  hypothesis 

control — whether  it  was   overcome  by  of    "dipsomania"    will    be    hereafter 

the  delusion — one  side  fearing  that  he  shown,  infra,  §  639. 
would  go  too  far  and   the  other  side 

183 


§  197.]       MENTAL    UNSOUNDNESS  IN   ITS   LEGAL   RELATIONS. 

Those  selected  by  the  defendant  out  of  the  small  knot  of  psycholo- 
gical physicians  who  hold  to  this  theory  ?  And  is  the  court  to  be 
bound  by  the  views  of  those  experts,  supposing  the  prosecution 
declines  to  reply,  or  replies  imperfectly?  Is  the  judge  to  shut  his 
eye  to  the  fact,  that  by  almost  all  modern  psychologists — by  all 
the  governmental  forensico-legal  experts  of  Germany,  by  whom 
such  great  breadth  and  ability  of  diagnosis  are  exhibited,  and  by 
whom  such  unparalleled  patience  and  compass  of  induction  are 
exercised — by  at  least  the  great  majority  of  English  and  American 
alienists — the  theory  of  distinct  moral  monomania,  the  mind  remain- 
ing sane,  is  not  only  repudiated  but  denounced  ?  But  how  is  this 
fact  to  be  shown  ?  The  prosecution  has  not  means  or  time,  even  if 
it  has  the  desire,  to  bring  these  eminent  men  to  the  witness-stand. 
There  is  no  process,  in  other  words,  by  which  the  true  sense  of  ex- 
perts, taking  them  as  a  body,  can  be  obtained.  The  test,  therefore, 
is  one  which,  from  the  inadequacy  of  our  judicial  machinery,  we 
cannot  apply  .^ 

§  197.  But,  again,  even  supposing  experts  of  conflicting  views 

could  be  fairly  and  freely  summoned,  so  as  to  give  the 
exists  to  de-  jury  the  full  testimony  of  science  on  the  questions  in 
o/exDerts^*   litigation,  there  is  no  court  of  experts  who  can  harmonize 

antagonistic  views,  and  give  to  the  jury  in  a  concrete 
shape  a  positive  and  final  judgment.  In  legal  practice,  from  the 
fact  that  in  each  state  there  is  a  final  court  of  appeal,  this  difficulty 
is  obviated.  We  all  know  what  the  law  is ;  or,  if  we  do  not,  we 
have  the  means,  in  each  litigated  case,  of  ascertaining  such  law. 
And  in  this  certainty,  at  least  as  much  as  in  the  wisdom  of  the 

'  See  infra,   §  295.     A  correction  of  report  thereon  to  the   court,"   which 

this  has  been,  it  is  true,  attempted  in  may  then  act  on  the  case,  and  in  its 

New   York;   by  the   Revised  Statutes  discretion   remand   the   party   to    the 

(Part  I.   ch.  XX.  §  20),  the   court  of  lunatic  asylum.  The  governor  is  given 

oyer  and  terminer,  where  "  any  person  the  same  power  in  capital  cases  ;  and, 

in  confinement   under   indictment   for  by  §  26,  the  county  judge  may  investi- 

the  crimes  of  arson,  murder,  or  attempt  at  gate  the  cases  of  persons  confined  un- 

murder,  or  highway  robbery,  shall  appear  der  other  than  civil  process,  who  ap- 

to  be  insane,"  is  given  power  summa-  pear  to  be  insane,  and  shall  "call  two 

rily  to  inquire  into  the  question,  and,  respectable  physicians  and  other  cred- 

for  this  purpose,  to   "appoint  a  com-  ible  witnesses,"  and  if  necessary  im- 

mission  to  examine  such   person    and  panel  a  jury, 
inquire  into  the  facts  of  his  case  and 

184 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  198. 

opinions  promulgated,  lies  our  safety.  Take,  for  instance,  to  repeat 
a  prior  illustration,  the  question  of  moral  insanity.  If  moral  in- 
sanity be  established  by  the  courts,  then  the  legislature  can  take 
measures  to  have  all  persons  "  morally  insane"  placed  in  insane 
asjlums,  so  that  no  injury  to  the  community  can  ensue  from  their 
running  at  large.  Or,  if  the  courts  hold  that  "  moral  insanity"  is 
not  a  defence,  then  persons  of  this  class  will  be  held  responsible 
penally  for  their  misdoings,  or  placed  under  bonds  to  keep  the 
peace.  But  if  the  rule  is  to  be  laid  down  by  experts  called  freshly 
in  each  particular  case,  with  no  court  of  appeal,  it  will  be  impos- 
sible to  have  any  settled  law.  The  experts  selected  in  one  case 
will  prove  entirely  a  different  law  from  the  experts  selected  in 
another  case.  For  instance,  in  those  cases  in  which  the  state  takes 
the  prosecution  in  its  own  hands,  and  calls,  as  is  the  practice  in 
some  jurisdictions,  leading  specialists  in  this  department  as  wit- 
nesses, the  prevalent  testimony  will  be  that  there  is  no  such  thing 
as  either  monomania  or  "  moral  insanity"  as  a  distinct  insane  affec- 
tion. On  the  other  hand,  in  a  case  in  which  the  defendant's  mental 
sanity  is  indisputable,  and  his  life  may  depend  on  his  proving  that 
"  moral  insanity"  is  a  good  defence,  experts  who  hold  to  "  moral 
insanity"  are  called  to  prove  that  it  exists;  and  "  moral  insanity"  is 
so  far  established.  From  neither  of  these  decisions  is  there  any 
appeal.  There  is  no  mode  of  harmonizing  them.  JSTor  is  it  possible 
to  tell  what  the  future  may  bring  forth,  except  that  each  party  will 
call  such  experts  as  are  most  favorable  to  his  views.  Now,  to 
speak  of  the  opinions  of  such  exceptional  experts  as  the  opinions  of 
experts  in  general,  and  declare  it  to  constitute  the  rule  of  insanity, 
is  about  as  reasonable  as  it  would  be  to  speak  of  the  arguments  of 
counsel  employed  to  argue  on  a  series  of  isolated  cases,  as  consti- 
tuting the  law  of  the  land.  The  fact  is  there  is  no  settled  and  final 
opinion  of  experts,  to  supply  the  test  which  is  here  invoked,  be- 
cause there  is  no  final  court  by  whom  conflicts  among  experts  can 
be  reconciled,  and  a  settled  law  pronounced. 

§  198.  But,  afier  all,  we   must  next  observe  that  the  proposed 
submission  of  the  test  to  experts  for  decision  is  an  illusion, 
for  the  court  will  have  to  explain  what  it  is  that  the  ex-   ^er^^h  te^tl- 
perts  say.     No  court  can  abdicate  its  functions  of  weigh-    ™°°y  °^  ^ 

,  ,  .  ,  °        the  experts. 

ing  testimony  and  of  declaring  what  testimony  means. 

It  is,  indeed,  a  fundamental  maxim  of  the  law  that  witnesses  are 

185 


§  199.]       MENTAL    UNSOUNDNESS    IN    ITS   LEGAL    RELATIONS. 

not  to  be  counted,  but  weighed.  Let  us  take,  as  illustrating  this 
necessity,  the  celebrated  Windham  case,  elsewhere  more  fully 
noticed.^  A  petition  of  lunacy  was  taken  out  against  Mr.  Wind- 
ham, his  nearest  relatives  being  the  petitioners.  His  course  was 
shown  to  have  been  since  his  boyhood — at  the  time  of  the  inquisi- 
tion he  was  not  much  older  than  twenty-one — one  of  reckless  and 
imbecile  profligacy ;  and  some  of  the  most  eminent  experts,  called 
for  the  petitioners,  declared  that  he  was  wanting  in  capacity  to 
manage  his  own  affairs.  But  the  testimony  thus  produced  was 
overborne,  as  to  numbers,  by  a  mass  of  other  experts,  who,  on 
examination  far  more  superficial,  and  on  tests  far  less  thorough, 
pronounced  for  the  respondent's  competency.^  Of  course  in  such 
cases  there  was  but  one  course  open  to  the  master  in  lunacy  by 
whom  the  inquisition  was  held.  His  duty  was  to  say  where  the 
weight  of  the  testimony  was,  and  by  what  tests  it  was  to  be  proved. 
So  it  must  always  be  in  cases  of  conflict  of  evidence.  Yet  to 
declare,  supposing  the  testimony  of  experts  to  be  "  law,"  where 
the  weight  of  this  testimony  lies,  is  really  to  declare  what  the  law 
itself  is.^ 

§  199.  Nor  can  harmony  be  by  any  other  course  adjusted  between 
And  decide  ^ivil  and  criminal  law.  In  many  classes  of  probate  cases 
upon  It.  ^i^g  question  of  a  testator's  sanity  is  taken  from  the  jury 
and  determined  exclusively  by  the  court.  In  all  civil  issues  this  is 
forced  by  demurrers  either  to  the  pleading  or  to  the  evidence. 
Even  on  jury  trials,  the  legal  relations  of  the  testimony  of  experts 
can  be  removed  by  bills  of  exceptions,  or  by  appeal,  to  the  superior 
court.  To  declare  that  in  criminal  cases  such  questions  are  solely 
for  the  jury,  guided  by  experts,  would  be  to  introduce  not  merely 
clashing  of  courts,  but  failure  of  justice.  A  man  would  be  sane  by 
one  class  of  proceedings,  and  be  insane  by  another.  After  being 
declared  responsible  by  an  inquisition  of  lunacy,  he  might  be  de- 

'  See  supra,  §  106.  Jones,   Butler,   Harbeson,  and  Berkey 

2  Similar  cases  have  occurred  in  the  on  the  one  side,  and  Doctors  Morton, 

United  States.     See  Winter's  case,  re-  Groves,    Seltzer,    and   Childs    on    the 

ported  27   Am.   Journ.    Ins.   47,    and  other,  present   a   diversity   of  profes- 

Com.    V.    Haskell,    2    Brewst.   491,    in  sional  opinions.    This  is  not  unusual." 

which  Judge  Brewster  said:     "  If  we  ^  See  more  fully,  as  to  weight  to  be 

look  at  the  medical  testimony,  we  find  attached  to  testimony  of  experts,  infra, 

an  even  balance  of  numbers.     Doctors  §  293. 

186 


INSANITY    AS    A    DEFENCE   TO    CHARGE   OF    CRIME.       [§  199  rt. 

clared  irresponsible  by  a  jury  on  an  indictment  for  crime  ;  and  thus 
would  he  be  too  irresponsible  to  be  punished  as  a  criminal,  and  yet 
not  irresponsible  enough  to  be  placed  in  an  insane  asylum.  Or, 
under  the  direction  of  experts  of  opposite  views,  a  man  who,  in  a 
civil  court,  would  be  held  insane,  might  be  convicted  by  a  jury  as 
sane,  without  any  right,  on  the  hypothesis  here  combated,  of  appeal- 
ing to  the  court  for  redress. 

§  199  a.  But,  finally,  we  must  fall  back  on  the  position  already 
fully  argued,  that  the  question  of  irresponsibility  is  one 
that  cannot,  consistently  with  public  justice,  be  surren-  sponsibmty 
dered  by  the  courts.  Responsibility  is  a  judicial  ques-  q^festlon^^^ 
tion.  It  is  one  of  the  highest  grade.  It  touches  the  most 
cherished  prerogative  of  citizen  and  state.  It  involves  in  its  crimi- 
nal relations  two  topics,  both  of  which  are  in  the  range  of  juridical 
philosophy,  and  both  of  which  should  be  decided,  in  each  case  that 
arises,  by  officers  of  the  state,  appointed  by  the  state,  bound  by 
fixed  rules,  and  advised,  before  they  decide,  by  counsel  who  will 
present  both  sides  of  the  question  at  large.  One  of  these  topics  is 
the  relation  of  responsibility  to  reason,  and  here  arises  the  principle, 
heretofore  discussed  on  gi-ounds  purely  juridical,^  that  wlierever 
there  is  reason  there  is  responsibility.  The  other  topic  is  that  of 
the  divisibility  of  the  Ego  into  distinct  factors,  one  of  which  can 
become  insane  while  the  other  is  sane  ;  and  in  this  is  involved  the 
position,  hereafter  to  be  vindicated,^  that  there  is  no  such  thing  as 
moral  insanity  coexistent  with  mental  sanity.  These  points  are  not  to 
be  finally  adjudicated  by  experts,  who  are  neither  appointed  by  the 
state  so  as  to  be  independent  of  special  influence,  nor  are  selected 
from  their  general  judicial  fitness,  nor  are  bound  by  precedent,  nor 
are  advised,  before  they  come  to  a  decision,  by  counsel  presenting 
fully  both  sides.  Experts  are  no  doubt  to  give  facts,  though  their 
explorations  of  facts  should  not  be  made  without  notice  to  the  oppo- 
site side.  But  questions  of  high  philosophical  jurisprudence  such 
as  these,  bearing  as  they  do  most  closely  on  the  liberty  of  the  citizen 
and  the  safety  of  the  state,  should  be  decided  by  judges,  who,  ap- 
pointed by  the  state,  independent  of  the  parties,  and  advised  by 
counsel,  remember  that  their  decision  is  to  be  part  of  a  harmonious 
and  equal  system  of  public  law,  and  that  for  their  rendering  of  it 

«  See  supra,  §§  110,  185-188.  2  Infra,  §§  533-572. 

187 


§  200.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

they  are  responsible  to  the  state  from  which  their  appointment  pro- 
ceeds.^ 

6.  Predisposition  to  insanity  as  lowering  the  grade  of  guilt. 

§  200.  It  has  already  been  abundantly  shown  that  there  are  con- 
ditions of  mind  in  which  actual  insanity  cannot  be  said 
Capacity  of  ,  .,.,.,,  . 

party  mea-    to  have  set  in,  but  m  which  there  are  insane  predisposi- 
ffuut^  tions  tending  to  either  undue  mental  exaltation,  or  undue 

mental  depression.^  A  psychical  condition,  inherited,  it 
may  be,  or  the  result  of  some  physical  cause,  makes  the  patient 
incapable,  when  excited,  of  due  deliberation,  renders  it  difficult  for 
him  to  cool,  or  disturbs  his  mind  when  it  comes  to  act  on  the 
question  of  intent.  Such  a  man,  for  instance,  in  an  excitement 
which  this  psychical  state  makes  far  more  intense  and  protracted  than 
it  would  be  among  persons  of  ordinary  mental  health,  kills  another. 
Is  he  to  be  acquitted  ?  Certainly  not ;  for  he  cannot,  on  any  sound 
principles  psychological  or  legal  be  declared  insane.  Is  he  to  be 
convicted  of  murder  in  the  first  degree,  and  hung?  This,  were 
the  defendant  a  person  of  healthy  and  normal  temperament,  would 
be  perhaps  the  natural  sequence  of  the  trial,  should  it  appear  that 
the  homicide  was  deliberately  executed.  But,  suppose  the  case  of 
a  man  who,  from  insane  predisposition,  instead  of  cooling  down 
after  the  first  flush  of  hot  blood,  falls  into  a  state  of  morbid  excite- 
ment continuing  and  perhaps  growing  for  weeks.  Is  such  a  man 
to  be  judged,  as  to  a  homicide  committed  during  such  excitement, 
by  the  same  rules  as  apply  to  a  person  whose  passions  have  had 
time  to  subside  ?  In  other  words,  are  "  cooling  time,"  and  "intent" 
and  "  premeditation,"  to  be  gauged  by  the  capacity  of  the  ideal 
rational  man,  or  that  of  the  person  under  trial  ?  That  the  latter 
view  should  be  taken — that  we  should  determine  these  questions 
according  to  the  capacity  of  the  defendant  himself,  has  been  already 
incidentally  argued,  and  may  be  confirmed  by  many  analogies  of 
penal  jurisprudence.  In  this  Avay  do  we  judge  those  conceptions 
of  danger  which  justify  a  party  in  resorting  to  violent  means  of 
self-defence  \^  so  do  we  determine  responsibility  in  cases  of  sleep- 
drunkenness  and  somnambulism ;  so  do  we  estimate  the  conduct  of 

'  See,  as  to  expert  testimony  in  in-        ^  Supra,  §  181. 
sanity,  Wh.  Cr.  Ev.  §  417.  »  Supra,  §§  125-145. 

188 


INSANITY    AS    A    DEFENCE    TO    CHARGE    OP   CRIME.       [§  200  a. 

persons  when  roused  by  any  great  political  or  religious  excitement;^ 
and  so  we  hold  in  cases  of  intoxication,  when  called  upon  to  measure 
deliberation  and  intent.^  If,  in  cases  where  homicide  has  been  com- 
mitted during  an  excitement  which  the  defendant's  peculiar  psychical 
state  has  abnormally  protracted  and  intensified,  a  verdict  of  murder 
in  the  second  degree,  or  of  manslaughter,  is  given  in  accordance 
with  these  views,  a  result  is  reached  which  is  not  only  in  accord 
with  sound  principle,  but  is  far  more  consistent  with  the  public  idea 
of  justice  than  would  be  a  verdict  either  of  not  guilty,  or  of  murder 
in  the  first  degree.^  This,  in  fact,  is,  under  the  North  German 
code,  the  established  law  in  Germany.  That  it  is  recommended  by 
high  medical  authority,  will  be  hereafter  seen.  Mr.  Stephens 
lends  his  valuable  authority  to  the  same  view.^  "  Partial  insanity" 
he  says,  "  may  be  evidence  to  disprove,  the  presence  of  the  kind  of 
malice  required  hy  the  law  to  constitute  the  particular  crime  of 
which  the  prisoner  is  accused.  A  man  is  tried  for  wounding  with 
intent  to  murder.  It  is  proved  that  he  inflicted  the  wound  under  a 
delusion  that  he  was  breaking  a  jar.  The  intent  to  murder  is  dis- 
proved, and  the  prisoner  must  be  acquitted  ;  but  if  he  would  have 
no  right  to  break  the  supposed  jar,  he  might  be  convicted  of  au 
unlawful  and  malicious  wounding." 

7.    Capacity  of  insane  defendants  to  plead. 

§  200  a.  By  statutes  existing  in  England,  and  in  several  of  the 
United  States,  it  is  competent  for  the  defendant's  counsel   pi-giimin- 
to  formally  plead  insanity,  as  a  special  preliminary  de-    ary  inquest 
fence,  in  which  case  an  inquest  is  taken  to  determine  the    plea  of  in- 
issue,  "  sane  or  insane."®     Where  a  jury  is  impanelled 
to  try  whether  a  prisoner  is  insane  or  not  at  the  time  when  he  is 

1  Wh.  Cr.  L.  8lli  ed.  §  47.  mor<^  rigidly,  than  it  now  does." — Dr. 

2  See  infra,  §§  211-214,  and  see  par-     Seguin,  in  North  Am.  Rev.,  Jan.  1882, 
ticularly  Roberts  v.  People,  19  Mich.     p.  21. 

401,  infra,  §  211.  ^  ggg^    jn   illustration    of    this,    Mc- 

"  I  believe  that  the  criminal  insane  Gregor's  case,  reported  and  commented 

should  be  held  just  as  responsible  to  on,  23  Am.  Journ.  Ins.  549. 

human  punishment — i.  e.,  preventive  *  Criminal   Law   of   England.     Lon- 

and  educating    punishment — as   sane  don,  1863,  p.  92. 

criminals.     Society  must  protect  itself  ^  See  R.  v.  Goode,  7  A.  &  E.  536 ;  R. 

against  crime  more  intelligently,  yet  v.  Dwerryhouse,  2  Cox,  C.  C.  446. 

189 


§  201.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

brought  up  to  plead  to  an  indictment,  the  counsel  for  the  prosecution 
is  to  begin  and  call  his  witnesses  to  prove  the  sanity  of  the  prisoner.^ 
But,  where  a  jury  is  impanelled,  at  the  instance  of  the  counsel  for 
a  prisoner,  to  try  whether  he  was  insane  or  not  at  the  time  of  the 
commission  of  the  offence,  the  burden,  in  English  practice,  is  on  the 
defence. 2 

§  201.  Where  the  defendant  from  insanity  is  incapable  of  plead- 
ing, the  court  will  disregard  his  plea  of  guilty,  or  any 
fendant  in-  confessions  of  guilt  he  may  offer.  And  even  his  pro- 
toTear*  testations  of  "  sanity"  will  be  disregarded,  if  there  be 
adequate  proof  that  he  is  insane,^  The  defence  of  in- 
sanity may  be  taken  by  his  counsel  against  his  will,  though  he  may 
be  personally  alloAved  to  call  witnesses  to  disprove  it.* 

The  practice  in  respect  to  pleading  by  persons  deaf  and  dumb  is 
discussed  fully  in  another  work.^ 

1  R.  V.  Davies,  6  Cox,  C.  C.  326  ;  3C.  *  Ibid.  ;  State  v.  Patten,  10  La.  Ann. 
&  K.  328.  299. 

2  R.  r.  Turton,  6  Cox,  C.  C.  385.  5  wii.    Cr.    PI.    &    Pr.   §    417.     For 

3  R.  V.  Pearce,  9  C.  &  P.  667.  pleading  by  lunatics  see  Wh.  Cr.  L. 


8th  ed.  §  57, 


190 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  202. 


CHAPTER  V. 

INTOXICATION  AS  A  DEFENCE  TO  CHARGE  OF  CRIME. 


1.  Permanent  insanity  produced  by  intoxi- 
cation affects  responsibility  in  the  same 
way  as  insanity  produced  by  any  other 
cause. 

Delirium  tremens  an  insane  condition, 
§  202. 

When  complete  extinguishes  responsi- 
bility, §  203. 

Such  the  law  in  this  country,  §  204. 

But  delirium  must  be  strictly  proved, 
§  205. 

Delirium  distinct  from  frenzy  of  drink, 
§  206. 

2.  Temporary  insanity,  immediately  pro- 
duced by  intoxication,  does  not  destroy 
responsibility,  where  the  patient,  when 
sane  and  responsible,  made  himself  vol- 
untarily intoxicated. 

Mere  drunkenness  does  not  avoid  re- 
sponsibility, §  207. 


This  view  necessary  to  public  safety, 
§  208. 

Sustained  by  all  authority,  §  209. 

Drunkenness  admissible  to  disprove 
specific  intent,  §  210, 

.3.  While  intoxication  per  se  is  no  defence 
to  the  fact  of  guilt,  yet,  whenihe  question 
of  intent  or  premeditation  is  concerned, 
it  may  be  proved  for  the  purpose  of  de- 
termining the  precise  degree. 

Degree  may  be  determined  by  fact  of 
drunkenness,  §  214. 

Same  view  taken  in  England  as  re- 
gards intent,  §  215. 

Unsettled  opinion  where  provocation 
existed,  §  216. 

Drunkenness  relevant  on  issue  of  ma- 
lice, §  217. 


1.  Permanent  insanity  produced  hy  intoxication  affects  responsi- 
bility in  the  same  way  as  insanity  produced  by  any  other  cause. 

§  202.  If  a  man  ■who,  laboring  under  delirium  tremens,  kills 
another,   is   made    responsible,   there    is   scarcely   any 

„  .  .  ,  .   ,  ,.,  •      •    1  ij        J.    Delirium 

species  of  insanity  which,  on  like  principles,  wouid  not  tremens  an 
be  subjected  to  the  severest  penalties  of  criminal  law.  d°tiom'^°° 
"  It  may  be  the  immediate  effect,"  says  Dr.  Ray,^  "  of 
an  excess,  or  series  of  excesses,  in  those  who  are  not  habitually 
intemperate,  as  well  as  in  those  who  are  ;  but  it  most  commonly 
occurs  in  habitual  drinkers,  after  a  few  days'  total  abstinence  from 
spirituous  liquors.     It  is  also  very  liable  to  occur  in  this  latter  class 


>  Med.  Jur.  438. 


191 


§  202.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

Avhen  laboring  under  other  diseases,  or  severe  external  injuries, 
that  give  rise  to  any  degree  of  constitutional  disturbance.  The  ap- 
proach of  the  disease  is  generally  indicated  by  a  slight  tremor  and 
faltering  of  the  hands  and  lower  extremities,  a  tremulousness  of  the 
voice,  a  certain  restlessness  and  sense  of  anxiety  which  the  patient 
knows  not  how  to  describe  or  account  for,  disturbed  sleep,  and  im- 
paired appetite.  These  symptoms  having  continued  two  or  three 
days,  at  the  end  of  which  time  they  have  obviously  increased  in 
severity,  the  patient  ceases  to  sleep  altogether,  and  soon  becomes 
delirious.  At  first  the  delirium  is  not  constant,  the  mind  wander- 
ing during  the  night,  but,  during  the  day,  when  its  attention  is 
fixed,  capable  of  rational  discourse.  It  is  not  long,  however,  before 
it  becomes  constant,  and  constitutes  the  most  prominent  feature  of 
the  disease.  Occasionally  the  delirium  occurs  at  an  earlier  period 
of  the  disease,  and  may  even  be  the  first  symptom  of  any  disorder. 
This  state  of  watchfulness  and  delirium  continues  three  or  four 
days,  when,  if  the  patient  recover,  it  is  succeeded  by  sleep,  which 
at  first  appears  in  uneasy  and  irregular  naps,  and  lastly  in  long, 
sound,  and  refreshing  slumbers.  When  sleep  does  not  supervene 
about  this  period,  the  disease  is  fatal ;  and  whether  subjected  to 
medical  treatment  or  left  to  itself,  neither  its  symptoms  nor  its 
duration  are  materially  modified.  The  character  of  the  delirium 
in  this  disease  is  peculiar,  bearing  a  stronger  resemblance  than  any 
other  form  of  mental  derangement  to  dreaming.  It  would  seem  as 
if  the  dreams  which  disturb  and  harass  the  mind  during  the  imper- 
fect sleep  that  precedes  the  explosion  of  the  disease  continue  to 
occupy  it  when  awake,  being  then  viewed  as  realities,  instead  of 
dreams.  The  patient  imagines  himself,  for  instance,  to  be  in  some 
peculiar  situation,  or  engaged  in  certain  occupations,  according  to 
each  individual's  habits  and  profession ;  and  his  discourse  and  con- 
duct are  conformed  to  this  delusion,  with  this  striking  peculiarity, 
however,  that  he  is  thwarted  at  every  step,  and  is  constantly  meet- 
ing with  obstacles  that  defy  his  utmost  efforts  to  remove.  Almost 
invariably  the  patient  manifests,  more  or  less,  feelings  of  suspicion 
or  fear,  laboring  under  continual  apprehension  of  being  made  the 
victim  of  sinister  designs  and  practices.  He  imagines  that  certain 
people  have  conspired  to  rob  or  murder  him,  and  insists  that  he  can 
hear  them  in  an  adjoining  apartment  arranging  their  plans  and 
preparing  to  rush  into  his  room ;  or  that  he  is  in  a  strange  place, 
192 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE    OF    CRISIS.       [§  203. 

where  he  is  forcibly  detained,  and  prevented  from  going  to  his  own 
home.  One  of  the  most  common  hallucinations  is  to  be  constantly 
seeing  devils,  snakes,  vermin,  and  all  manner  of  unclean  things 
around  him  and  about  him,  and  filling  every  nook  and  corner  of  his 
apartment.  The  extreme  terror  which  these  delusions  often  inspire 
produces  in  the  countenance  an  unutterable  expression  of  anguish, 
and,  in  the  hope  of  escaping  from  his  fancied  tormentors,  the 
Avretched  patient  endeavors  to  cut  his  throat  or  jump  from  the 
window.  Under  the  influence  of  these  terrible  apprehensions  he 
sometimes  murders  his  wife  or  attendant,  whom  his  disordered 
imagination  identifies  with  his  enemies,  though  he  is  generally 
tractable,  and  not  inclined  to  be  mischievous.  After  perpetrating 
an  act  of  this  kind,  he  generally  gives  some  illusive  reason  for  his 
conduct,  rejoices  in  his  success,  and  expresses  his  regret  at  not 
having  done  it  before."^ 

§  208.    As   far   as   concerns   temporary   incapacity,  therefore, 
delirium  tremens  acts  in   the   same  way  as   any  other 
delirium,  and,  when  complete,  destroys  responsibility.    pietTextin- 

The   only  question,  therefore,  is  whether  there  is  any-    guishes  re- 
.  ....  eponsibility 

thing  in  the  source  from  Avhich  it  is  derived  which  re- 
quires that  it  should  be  exempted  from  the  general  rule  by  which 
delirium  forms  a  good  defence  to  an  indictment  for  a  criminal 
offence.  In  the  dicta  of  one  or  two  of  the  older  law  writers,  this 
exception  is  sought  to  be  sustained  on  the  ground  that  a  drunkard, 
in  every  stage,  is  a  voluntary  demon,  and  that  he  can  no  more  use 
his  consequent  mania  as  a  defence  than  can  the  man  who  kills 
another  by  a  sword  allege  that  it  was  the  sword,  and  not  himself, 
that  was  the  guilty  agent.  But  to  this  the  answer  is  threefold : 
(1)  that  delirium  tremens  is  not  the  intended  result  of  drink  in 
the  same  way  that  drunkenness  is;  (2)  that  there  is  no  possibility 
that  delirium  tremens  can  be  voluntarily  generated  in  order  to 
afford  a  cloak  for  a  particular  crime  ;  (3)  that,  so  far  as  original 
cause  is  concerned,  it  is  not  peculiar  in  being  the  offspring  of  indis- 
cretion or  guilt,  for  such  is  the  case  with  almost  every  other  species 
of  insanity.  These  points  scarcely  need  to  be  expanded.  The  fact 
is,  delirium  tremens  runs  the  same  course  with  most  of  the  other 

'  See  an  interesting  case  of  Oinomamia  in  8  Amer.  Journ.  of  Insan.  3 ;  and 
see  infra,  "  Dipsomania,"  §  639. 

VOL.  I.— 13  193 


§  205.]       MENTAL   UNSOUNDNESS   IN   ITS    LEGAL   RELATIONS. 

classes  of  insanity  known  in  the  criminal  courts.  It  is  the  result, 
like  most  other  manias,  of  prior  vicious  indulgence  ;  but  it  differs 
from  intoxication  in  being  shunned  rather  than  courted  by  the 
patient,  and  in  being  incapable  of  voluntary  assumption  for  the  pur- 
pose of  covering  guilt. 

§  204.  Reason,  therefore,  undoubtedly  teaches  us  that  a  person 
„  who  is  incapacitated  from  moral  and  intellectual  agency, 

law  in  this  by  reason  of  delirium  tremens,  is  irresponsible  ;  and 
such  is  the  law,  as  decided  in  repeated  instances.^  Thus, 
in  the  leading  American  case,  Story,  J.,  declared  criminal  responsi- 
bility not  to  attach  where  the  delirium  is  the  "  remote  consequence" 
of  voluntary  intoxication,  "  superinduced  by  the  antecedent  ex- 
haustion of  the  party,  arising  from  gross  and  habitual  drunkenness, 
HoAvever  criminal,"  he  proceeded  to  say,  "  in  a  moral  point  of 
view,  such  an  indulgence  is,  and  however  justly  a  party  may  be 
responsible,  for  his  acts  arising  from  it,  to  Almighty  God,  human 
tribunals  are  generally  restricted  from  punishing  them,  since  they 
are  not  the  acts  of  a  reasonable  being.  Had  the  crime  been  com- 
mitted when  Drew  (the  defendant)  was  in  a  fit  of  intoxication,  he 
would  have  been  liable  to  be  convicted  of  murder.  As  he  was  not 
then  intoxicated,  but  merely  insane  from  an  abstinence  from  liquor, 
he  cannot  be  pronounced  guilty  of  the  offence.  The  law  looks  to 
the  immediate,  and  not  to  the  remote  cause  ;  to  the  actual  state  of 
the  party,  and  not  to  the  causes  which  remotely  produced  it.  Many 
species  of  insanity  arise,  remotely,  from  what,  in  a  moral  view,  is 
a  criminal  neglect  or  fault  of  the  party  :  as  from  religious  melan- 
choly, undue  exposure,  extravagant  pride,  ambition,  etc.  Yet  such 
insanity  has  always  been  deemed  a  sufficient  excuse  for  any  crime 
done  under  its  influence." 

§  205.  In  a  still  earlier  case  of  at  least  equal  authority,  the  court 

told  the  jury  that  if  they  "  should  be  satisfied  by  the  evi- 

rium'^must     dence  that  the  prisoner,  at  the  time  of  committing  the  act 

be  strictly  charjied  in  the  indictment,  was  in  such  a  state  of  mental 
proved.  ^  .  .  „  .  . 

insanity,  not  produced  by  the  immediate  effects  of  intoxi- 

I  R.  !;.  Thomas,  7  C.  &  P.  817 ;  R.  v.  Com.   v.   Green,    1    Ashm.   289  ;    and 

Meakin,  7  C.  &  P.  297  ;  Rennie's  case,  other  cases  cited  in  Wh.  Cr.  L.  8th  ed. 

1   Lew.   C.   C.  76  ;    U.  S.  v.  Drew,   5  §  48  ;  1  Hale,  32 ;  1  Russ.  on  Cr.  7  ;  4 

•Mason,  28  ;    U.  S.  v.  Forbes,  Crabbe,  Black.  Com.  26. 
558;  U.  S.  V.  McGlue,  1  Curt.  C.  C.  1 ; 

194 


INTOXICATION   AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  205. 

eating  drinks,  as  not  to  have  been  conscious  of  the  moral  turpitude 
of  the  act,  they  should  find  him  not  guilty."^  And  expressly  to 
this  very  point  is  a  more  recent  case,  where  a  federal  judge  of  high 
authority  told  the  jury  that,  if  the  defendant  was  "  so  far  insane  as 
not  to  know  the  nature  of  the  act,  nor  whether  it  was  wrong  or  not, 
he  is  not  punishable,  although  such  delirium  tremens  is  produced 
by  the  voluntary  use  of  intoxicating  liquors."^ 


'  U.  S,  V.  Clarke,  2  Cranch,  C.  C.  R. 
158  ;  S.  P.  State  v.  Hundley,  46  Mo. 
414. 

2  U.  S.  V.  McGlue,  1  Curtis,  C.  C.  R. 
1.     This  case  we  give  in  full : — 

The  prisoner,  who  was  second  officer 
on  board  the  barque  Lewis,  was  in- 
dicted for  the  murder  of  the  first  officer 
of  that  vessel  while  on  board.  The 
defence  was  insanity.  The  other  facts 
appear  in  the  charge  of  the  court. 

Curtis,  J.  The  prisoner  is  indicted 
for  the  murder  of  Charles  A.  Johnson. 
It  is  incumbent  on  the  government  to 
prove  the  truth  of  every  fact  in  the  in- 
dictment necessary  in  point  of  law  to 
constitute  the  offence.  These  facts  are 
in  part  controverted,  and  in  part,  as  I 
understand  the  course  of  the  trial,  not- 
controverted  ;  and  it  will  be  useful  to 
separate  the  one  from  the  other.  That 
there  was  an  unlawful  killing  of  Mr. 
Johnson ;  that  the  mortal  wound  was 
inflicted  by  the  prisoner  at  the  bar  ;  that 
this  wound  was  given  and  the  death 
took  place  on  board  the  barque  Lewis  ; 
that  Johnson  was  the  first,  and  the 
prisoner  the  second  officer  of  that  ves- 
sel at  the  time  of  the  occurrence  ;  that 
the  vessel  at  that  time  was  either  on  the 
high  seas,  as  is  charged  in  one  count, 
or  upon  waters  within  the  dominion  of 
the  Sultan  of  Muscat,  as  is  charged 
in  another  count ;  and  that  the  ijris- 
oner  was  first  brought  into  this  district 
after  the  commission  of  the  alleged  of- 
fence— do  not  appear  to  be  denied  ;  and 
the  evidence  is  certainly  sufficient  to 
warrant  you  in  finding  all  these  facts. 


It  is  not  upon  a  denial  of  either  of  these 
facts  that  the  defence  is  rested,  but 
upon  the  allegation  by  the  defendant, 
that  at  the  time  the  act  was  done  he 
was  so  far  insane  as  to  be  criminally 
irresponsible  for  his  act.  And  this 
brings  you  to  consider  the  remaining 
allegation  in  the  indictment  which  in- 
volves this  defence.  It  is  essential  to 
the  crime  of  murder  that  tiie  killing 
should  be  from  what  the  law  denomi 
nates  malice  aforethought,  and  the 
government  naust  prove  this  allegation. 
Now,  if  you  believe  the  evidence, 
there  can  be  no  question,  that  the  kill- 
ing was  malicious,  provided  the  pris- 
oner was  at  the  time  in  such  a  condi- 
tion as  to  be  capable,  in  law,  of  malice. 
If  he  was  then  so  insane  that  the  law 
holds  him  irresponsible,  it  deems  him 
incapable  of  entertaining  legal  malice  ; 
and  one  main  inquiry  in  this  case  is, 
whether  the  prisoner,  when  he  struck 
the  blow,  was  so  far  insane  as  to  be 
held  by  the  law  irresponsible  for  inten- 
tionally killing  Mr.  Johnson. 

Some  observations  have  been  made 
by  the  counsel  of  each  side  respecting 
the  character  of  this  defence.  On  the 
one  side  it  is  urged  that  the  defence  of 
insanity  has  become  of  alarming  fre- 
quency, and  that  there  is  reason  to 
believe  that  it  is  resorted  to  by  great 
criminals  to  shield  them  from  the  just 
consequences  of  their  crimes ;  that 
there  exist  in  the  community  cc^rtain 
theories  concerning  v.'hat  is  called 
moral  insanity,  broug..t  forvvanl  on 
trials  of  this  kind,  tending  to  .^ulivert 

195 


§  205.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

When  delirium  tremens  is  set  up  as  a  defence,  the  prisoner  must 
show  that  he  was  under  a  delirium  at  the  time  the  act  was  perpe- 


the  criminal  law,  and  render  crimes 
likely  not  to  be  punished.  On  tlie 
other  hand,  the  inhumanity  and  injus- 
tice of  holding  him  guilty  of  murder 
who  was  not  at  the  time  of  the  act  a 
reasonable  being,  have  been  brought 
before  you  in  the  most  striking  forms. 

These  observations  of  the  counsel  on 
both  sides  are  worthy  of  your  atten- 
tion, and  their  eiFect  should  be  to  cause 
you  to  follow  steadily,  carefully,  and 
exactly,  the  rules  of  law  upon  this 
subject.  The  general  question,  whe- 
ther the  prisoner's  state  of  mind  when 
he  struck  the  blow  was  such  as  to  ex- 
empt him  from  legal  responsibility,  is 
a  question  of  fact  for  your  decision. 
But  there  are  certain  rules  of  law 
which  you  are  bound  to  apply,  and 
the  court,  upon  its  responsibility,  is  to 
lay  down  ;  and  these  rules,  when  ap- 
plied, will  conduct  you  to  the  only 
safe  decision. 

You  will  observe,  then,  that  this  de- 
fence of  insanity  is  to  be  tested  and 
governed  by  principles  of  law,  and  not 
by  any  loose  general  notions  which 
may  be  afloat  in  the  community,  or 
even  the  speculations  of  men  of  science  ; 
and  I  now  proceed  to  state  to  you  such 
of  them  as  are  applicable  to  this 
case. 

The  first  is,  that  the  defendant  must 
be  presumed  to  be  sane  till  his  insanity 
is  proved.  Men,  in  general,  are  suffi- 
ciently sane  to  be  responsible  for  their 
acts.  To  be  irresponsible  because  of 
insanity  is  an  exception  to  that  general 
rale.  And,  before  any  man  can  claim 
the  benefit  of  such  an  exception,  he 
must  prove  that  he  is  within  it.    . 

You  will,  therefore,  take  it  to  be  the 
law,  that  the  prisoner  is  not  to  be  ac- 
quitted upon  the  ground  of  insanity, 

196 


unless  upon  the  whole  evidence  you 
are  satisfied  that  he  was  insane  when 
he  struck  the  blow. 

The  next  inquiry  is.  What  is  meant 
by  insanity  ?  What  is  it  which  exempts 
from  punishment,  because  its  existence 
is  inconsistent  with  a  criminal  intent  ? 
Clearly,  it  is  not  every  kind  and  de- 
gree of  insanity  which  is  sufficient. 
There  are,  undoubtedly,  persons  of 
great  general  ability,  filling  important 
stations  in  life,  who,  upon  some  one 
subject,  are  insane.  And  there  are 
others  whose  minds  are  such  that  the 
conclusions  of  their  reasons  and  the 
results  of  their  judgments  are  very  far 
from  right.  And  others  whose  pas- 
sions are  so  strong,  or  whose  con- 
science, reason,  and  judgment  are  so 
weak,  so  perverted,  that  they  may,  in 
some  sense,  be  denominated  insane. 
But  it  is  not  the  business  of  the  law  to 
inquire  into  these  peculiarities,  but 
solely  whether  the  person  accused  was 
capable  of  having,  and  did  have,  a 
criminal  intent.  If  he  had,  it  pun- 
isiies  him  ;  if  not,  it  holds  him  dispun- 
ishable. And  it  supplies  a  test,  by 
which  the  jury  is  to  ascertain  whether 
the  accused  be  so  far  insane  as  to  be 
irresponsible.  That  test  is  the  capacity 
to  distinguish  between  right  and  wrong 
as  to  the  particular  act  with  which  he 
is  charged.  If  he  understands  the 
nature  of  the  act,  if  he  knows  that  it  is 
criminal,  and  that  if  he  does  it  he 
deserves  punishment,  then  he  is  not 
so  far  insane  as  to  be  exempt  from  re- 
sponsibility. But,  if  he  is  under  such 
delusion  as  not  to  understand  the 
nature  of  the  act,  and  has  not  reason 
and  judgment  to  know  that  he  is  de- 
serving of  punishment,  then  he  is  not 
responsible.     This   is   the   test   which 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  205. 

trated,  there  being  no  presumption  of  its  existence  from  the  ante- 
cedent fits  from  which  he  has  recovered.^ 


the  law  prescribes,  and  which  you  are 
to  apply  in  the  present  case. 

It  is  asserted  by  the  prisoner  that 
when  he  struck  the  blow  he  was  suffer- 
ing under  a  disease  known  as  delirium, 
tremens.  He  has  introduced  evidence 
tending  to  prove  his  intemperate  drink- 
ing of  ardent  spirits  during  several 
days  before  the  time  in  question,  and 
also  certain  effects  of  this  intemperance. 
Physicians  of  great  eminence,  and  par- 
ticularly experienced  in  the  observation 
of  this  disease,  have  been  examined  on 
both  sides.  They  were  not  allowed 
to  give  their  opinions  upon  the  case ; 
because  the  case,  in  point  of  fact,  on 
which  any  one  might  give  his  opinion, 
might  not  be  the  case  which  you,  upon 
the  evidence,  would  find ;  and  there 
would  be  no  certain  means  of  knowing 
whether  it  was  so  or  not.  It  is  not  the 
province  of  an  expert  to  draw  infer- 
ences of  fact  from  evidence,  but  simply 
to  declare  his  opinion  upon  a  known 
or  hypothetical  state  of  facts  ;  and 
therefore  the  counsel  on  each  side  have 
put  to  the  physicians  such  states  of 
facts  as  they  deem  warranted  by  the 
evidence,  and  have  taken  their  opin- 
ions thereon.  If  you  consider  that  any 
of  these  states  of  fact  put  to  the  phy- 
sicians are  proved,  then  the  opinions 
thereon  are  admissible  evidence,  other- 
wise they  are  not  applicable  to  this 
case.  And  here  I  may  remark,  that 
although  in  general  witnesses  are  held 
to  state  only  facts,  and  are  not  allowed 
to  give  their  opinions  in  a  court  of  law, 
yet  this  rule  does  not  exclude  the 
opinions  of  those  whose  professions, 
and  studies  or  occupations,  have  ren- 
dered them  peculiarly  skilful  concern- 


ing particular  questions.  We  take  the 
opinion  of  physicians  in  this  case  for 
the  same  reason  that  we  resort  to  them 
in  our  own  cases  out  of  court,  because 
they  are  believed  to  be  better  able  to 
form  a  correct  opinion  upon  a  subject 
within  the  scope  of  their  studies  than 
men  in  general.  But  these  opinions, 
though  proper  for  your  consideration, 
are,  nevertheless,  not  binding  on  you 
against  your  own  judgment,  but  should 
be  weighed,  and,  especially  where  they 
differ,  compared  by  you,  and  such  effect 
allowed  to  them  as  you  think  right. 
Besides  these  opinions,  the  physicians 
have  also  described  to  you  the  symp- 
toms of  the  disease  delirium  tremens. 
They  all  agree  that  it  is  a  disease  of  a 
very  strongly  marked  character,  and 
as  little  liable  to  be  mistaken  as  any 
known  in  medicine.  Dr.  Bell  says  the 
symptoms  are — 

"1.  Delirium,  taking  the  form  of 
apprehensiveness  on  the  part  of  the 
patient.  He  is  fearful  of  something  ; 
imagines  demons  and  snakes  around 
him.  In  attempting  to  escape,  he  will 
attack  others  as  well  as  injure  himself. 
But  he  is  more  apprehensive  of  receiv- 
ing injury  than  desirous  of  inflicting 
it,  except  to  escape.  He  is  generally 
timid  and  irresolute,  and  easily  pacified 
and  controlled. 

"2.  Sleeplessness.  I  believe  delirium 
tremens  cannot  exist  without  this. 

"  3.  Tremulousness,  especially  of  the 
hands,  but  showing  itself  in  the  limbs 
and  the  tongue. 

"4.  After  a  time  sleep  occurs,  and 
reason  thus  returns  ;  usually  the  sleep 
comes  on  in  not  less  than  three  days, 
dating  from  the  last  sleep.     At  first  it 


•  State  V.  Sewell,  3  .Jones  L.   (N.  C.)  250. 
ig  from  prior  insanity,  see  §  246. 


As  to  general  presumption  aris- 

197 


§,206.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

§  206.    To  an  indictment  in  Delaware,  for  larceny,  the  defence 
was  that  the   prisoner  was  so  drunk  as  to  render  him  irresponsi- 


is  broken  ;  then  tliis  is  followed  by  a 
profound  sleep,  lasting  six  or  eight 
hours,  from  which  the  patient  awakes 
sane." 

Dr.  Steadman,  after  describinc.'  its 
symptoms  substantially  as  Dr.  Bell 
did,  says  its  access  may  be  very  sud- 
den, and  he  has  often  known  it  first  to 
manifest  itself  by  the  patients  attack- 
ing those  about  them,  regarding  them 
as  enemies  ;  that  a  case  may  terminate 
in  two  days,  and  rarely  lasts  more 
than  four  days. 

Regarding  these  accornts  of  the 
symptoms  of  this  disease,  you  will  in- 
quire whether  the  evidence  proves  that 
they  existed  in  this  case ;  and  whether 
the  previous  habits  and  the  intemper- 
ate use  of  ardent  spirits,  from  which 
this  disease  springs,  are  shown;  and 
whether  the  recovery  of  the  prisoner 
corresponded  with  the  course  and  ter- 
mination of  the  disease  of  delirium  tre- 
mens as  described  by  the  physicians. 

It  is  not  denied,  on  the  part  of  the 
government,  that  the  prisoner  had 
drank  intemperately  of  ardent  spirits 
during  some  days  before  the  occurrence. 
But  it  is  insisted  that  he  had  continued 
to  drink  down  to  a  short  time  before 
the  homicide  ;  and  that  when  he  struck 
the  blow  it  was  in  a  fit  of  drunken 
madness.  And  this  renders  it  neces- 
sary to  instruct  you  concerning  the  law 
upon  the  state  of  facts  which  the  pros- 
ecutor asserts  existed. 

Although  delirium  tremens  is  the  result 
of  intemperance,  and  therefore  in  some 
sense  is  voluntarily  brought  on,  yet  it 
is  distinguishable,  and  by  the  law  is 
distinguished,  from  that  madness  which 
sometimes  accompanies  drunkenness. 

If  a  person  suffering  under  delirium 
tremens  is  so  far  insane  as  to  render  him 

198 


irresponsible,  the  law  does  not  punish 
him  for  any  crime  he  may  commit. 

But,  if  a  person  commits  a  crime 
while  intoxicated,  under  the  immediate 
influence  of  liquor,  the  law  does  punish 
him,  however  mad  he  may  have  been. 
It  is  no  excuse,  but  rather  an  aggra- 
vation of  his  offence,  that  he  first  de- 
prived himself  of  reason  before  he  did 
the  act.  There  would  be  no  security 
for  life  or  property  if  men  could  com- 
mit crimes  with  impunity,  provided 
they  would  first  make  themselves 
drunk  enough  to  cease  to  be  reasonable 
beings.  And,  therefore,  it  is  a  very 
important  inquiry  in  this  case  whether 
this  homicide  was  committed  while  the 
prisoner  was  suflTering  under  that 
marked  disease  of  delirium  tremens,  or 
in  a  fit  of  drunken  madness.  If  the 
prisoner  while  sane  made  himself  in- 
toxicated, and  while  intoxicated  com- 
mitted a  murder  by  reason  of  insanity 
which  was  one  of  the  consequences  of 
that  intoxication,  then  he  is  responsi- 
ble in  point  of  law,  and  must  be  pun- 
ished. This  is  as  clearly  the  law  of 
the  land  as  the  other  rule,  which  ex- 
empts from  punishment  acts  done 
under  delirium  tremens.  It  may  some- 
times be  difficult  to  determine  under 
which  rule  the  accused  comes.  But  it 
is  the  duty  of  the  jui-y  to  ascertain 
from  the  evidence  on  which  side  this 
case  falls,  and  to  decide  accordingly. 

It  may  be  material  for  you  to  know 
on  which  party  is  the  burden  of  proof 
in  this  part  of  the  case.  It  is  incum- 
bent on  the  prisoner  to  satisfy  you  that 
he  was  insane  when  he  struck  the 
blow,  for  the  law  presumes  every  man 
to  be  sane  till  the  contrary  is  proved. 
But,  if  the  contrary  has  been  proved, 
the  law  does  not  presume  that  the  in- 


INTOXICATION    AS   A    DEFENCE    TO    CHARGE    OF   CRIME.       [§  206. 

ble.  Judge  Wotten  charged  the  jury  that  drunken-  Delirium 
ness  was  no  excuse  or  palliation  for  a  crime,  but  drunken-  from  frenzy 
ness  long  continued  produces  the  disease  of  mania-d-  °^  drink. 
potu,  which  deprives  the  party  of  reason,  and  incapacitates  him 
from  distinguishing  between  right  and  wrong.  In  this  stage  it 
becomes  a  kind  of  insanity.  The  jury  would  have  to  distinguish 
between  the  mere  frenzy  of  drunkenness,  and  the  fixed  insanity 
produced   by  continued   dissipation.     If   the  prisoner  was  in  the 


sanity  of  the  prisoner  arose  from  any 
particular  canse  ;  and  it  is  incumbent 
on  the  party  which  asserts  that  it  did 
arise  from  a  particular  cause,  and  that 
the  prisoner  is  guilty  by  law  because 
it  arose  from  that  cause,  to  make  out 
this  necessary  element  in  the  charge  to 
the  same  extent  as  every  other  element 
in  it.  For  the  charge  then  assumes  this 
form — that  the  prisoner  committed  a 
murder,  for  which,  though  insane,  he 
is  responsible,  because  his  insanity  was 
produced  by  and  accompanied  a  state 
of  intoxication.  The  government  must 
satisfy  you  of  these  facts,  which  are 
necessary  to  the  guilt  of  the  prisoner 
in  point  of  law.  If  you  are  convinced 
that  the  prisoner  was  insane  to  such 
an  extent  as  to  render  him  irresponsi- 
ble, you  will  acquit  him,  unless  you 
are  also  convinced  that  his  insanity 
was  produced  by  intoxication,  and  ac- 
companied that  state  ;  in  which  case 
you  will  find  him  guilty. 

The  prisoner  was  acquitted. 

A  note  in  the  American  Journal  of  In- 
saniti/  for  July,  1856,  says  : — 

"This  distinction,  between  delirium 
tremens  and  temporary  madness  induced 
by  intoxication,  is  laid  down  in  The 
United  States  v.  Drew,  5  Mason,  28 ; 
and  (in  England)  in  William  Rennie's 
case,  1  Lewin,  C.  C.  76.  In  the  latter 
case,  Holroyd,  J.,  said  :  '  Drunkenness 
is  not  insanity,  nor  does  it  answer  to 
what  is  termed  an  unsound  mind,  un- 


less the  derangement  which  it  causes  becomes 
fixed  and  continued  by  the  drunkenness 
being  habitual,  and  thereby  rendering  the 
party  incapable  of  distinguishing  between 
right  and  wrong. ^  That  mere  drunken- 
ness is  no  excuse  for  crime  is  very 
clearly  settled  by  many  decisions  both 
in  this  country  and  in  England.  Corn- 
well  V.  The  State,  Mart.  &  Y.  147,  149  ; 
Bennet  v.  The  State,  ib.  133  ;  The  State 
V.  Turner,  1  Wright's  Ohio,  20;  The 
State  V.  Thompson,  ib.  617  ;  Schaller 
V.  The  State,  14  Missouri,  502  ;  The 
State  V.  John,  8  Ired.  330 ;  Pirtle  v. 
The  State,  9  Humph.  663  ;  Kelley  v. 
The  State,  3  Smedes  &  M.  518;  The 
United  States  v.  Clarke,  2  Cranch,  C. 
C.  R.  158.  But,  though  drunkenness 
is  not  of  itself  a  complete  defence  to 
crime,  as  insanity  is,  yet  it  may  be  ad- 
missible to  the  jury  as  evidence  of  the 
intent,  in  certain  cases,  with  which  the 
act  was  done.  Thus,  in  Pigman  v. 
The  State,  14  Ohio,  555,  it  was  held, 
on  an  indictment  for  jjassing  counter- 
feit money  knowing  it  to  be  counterfeit, 
that  the  drunkenness  of  the  prisoner 
at  the  time  of  passing  was  proper  for 
the  consideration  of  the  jury  in  de- 
termining whether  he  knew  the  bill  to 
be  counterfeit.  See,  also.  The  State  v. 
McCants,  1  Spears,  384  ;  Pennsylvania 
V.  M'Fall,  Addison,  255  ;  Swan  i\  The 
State,  4  Humph.  136  ;  Pirtle  v.  The 
State,  9  ib.  663  ;  Haile  v.  The  State,  11 
ib.  154," 

199 


§  207.]       MENTAL    UNSOUNDNESS    IN    ITS    LEGAL   RELATIONS. 

latter  condition  he   could  not  be  held  responsible,  otherwise  he 
ought  to  be  convicted.^ 

2.  Insanity  immediately  produced  hy  intoxication  does  not  destroy 
responsibility  ivhere  the  patient,  when  sane  and  responsible,  made 
himself  voluntarily  intoxicated. 

§  207.  Drunkenness,  so  long  as  it  does  not  prostrate  the  facul- 
ties,  cannot  be  distinguished  from  any  other  kind  of  pas- 
drunken-  sion.  If  the  man  who  is  maddened  by  an  unprovoked 
not  avoid  attack  upon  his  person,  his  reputation,  or  his  honor,  be 
biiitv°"'  nevertheless  criminally  responsible — if  hot  blood  form  no 
defence  to  the  fact  of  guilt — it  would  be  a  most  extraor- 
dinary anomaly  if  drunkenness  voluntarily  assumed  should  have  that 
effect,  independently  of  all  extraneous  provocation  whatever.  If,  as 
is  pretended — or  else  there  is  no  ground  for  the  exception — drunken- 
ness so  incapacitates  the  reason  as  to  make  it  at  least  partially 
incapable  of  distinguishing  between  right  and  wrong,  or  else  so 
inflames  the  passions  as  to  make  restraint  insupportable,  then  comes 
in  the  familiar  principle  that  the  man  who  voluntarily  assumes  an 
attitude  or  does  an  act  which  is  likely  to  produce  death  in  others, 
is  responsible  for  the  consequences,  even  though  he  had  at  the  time 
no  specific  intentions  to  take  the  life  of  any  one.  Thus,  if  a  man 
breaking  an  unruly  horse  wilfully  ride  him  among  a  crowd  of  per- 
sons, the  probable  danger  being  great  and  apparent,  or  if  a  work- 
man out  of  sport  or  mischief  slide  a  plank  from  the  top  of  a  roof 
into  a  crowded  street,  or  if  a  manufacturer  deliberately  and  know- 
ingly leave  in  the  cellar  of  an  uninhabited  house  a  keg  of  powder, 
and  death  ensue,  it  is  murder  at  common  law.^  And  so  it  must 
also  be  held  that  the  steamboat  captain  who  deliberately  dashes  his 
boat  into  a  crowd  of  smaller  craft,  so  that  life  is  taken,  is  in  like 
manner  responsible.  There  can  be  no  question  as  to  this.  The 
man  who  voluntarily  arms  himself  with  weapons  of  destruction,  and 
then  throws  them  hap-hazard  among  the  innocent  or  unoffending, 
without  even  the  excuse  of  specific  malice  or  provocation,  is  at  least 
as  dangerous  as  the  assassin  who  picks  out  his  victim  in  advance. 
Against  the  last  there  may  be  some  checks  ;  against  the  first,  none. 

•  State  V.  McGonigal,  5  Harr.  510.  2  See  Wb.  Cr.  L.  8th  ed.  §§  343  et 

seq. 

200 


INTOXICATION   AS    A    DEFENCE    TO    CHARGE    OE    CRIME.       [§  209. 

Caution  may  ward  off  the  one.  or  innocence  escape  it ;  but  to  the 
other  the  most  innocent  and  kindliest  would  be  as  likely  to  fall 
victims  as  the  most  malevolent. 

§  208.  The  safety  of  the  community,  in  fact,  requires  that  this 
rule  should  be  observed.     Every  murderer  would  drink 
to  shelter  his  intended  guilt.     There  never  could  be  a    necessarj^ 
conviction  for  homicide  if  drunkenness  avoid  responsi-   to  public 

^  satety. 

bility.^  As  it  is,  some  of  the  most  premeditated  homi- 
cides are  committed  under  the  stimulus  of  liquor.  The  guilty  pur- 
pose is  at  first  sedately  conceived,  but  there  are  few  men  whose 
temperaments  are  so  firmly  knit  as  to  enable  them  to  enter  a  scene 
of  blood  without  first  fortifying  themselves  for  the  task  to  be  per- 
formed. The  head  dreads  the  heart's  cowardice,  and  seeks  to  insure 
against  it  by  drink.  And,  if  the  assassin  does  not  take  liquor  to 
strengthen  his  nerves,  he  will  take  it  to  avoid  conviction.  There 
would  be  no  species  of  deliberate  homicide,  under  such  a  dispensa- 
tion, that  would  not  avoid  punishment.  It  would  be  the  undelibe- 
rate only  that  would  be  made  responsible. 

§  209.  The  tenor  of  authority  to  this  effect  is  clear.     Even  the 

German  text  writers,  some  of  whom  attenuate  to  so  thin    „    ^  .     , 
'  Sustained 

a  texture  the  doctrine  of  moral  responsibility,  do  not  ty  all 
undertake  to  treat  drunkenness  as  a  defence.  Sir  E. 
Coke  does  not  go  beyond  the  tenor  of  Roman  as  well  as  of  English 
writers  when  he  says,  "As  for  a  drunkard  who  is  voluntarius 
dcemon,  he  hath,  as  has  been  said,  no  privilege  thereby,  but,  what 
hurt  or  ill  soever  he  doth,  his  drunkenness  doth  aggravate  it. 
Omne  crimen  ebrietas  et  ineendit  et  detegit.^^^  And,  although 
drunkenness  cannot  now  be  said  to  aggravate  a  crime  in  a  judicial 
sense,  yet  it  is  well  settled  that  it  forms  no  defence  to  the  fact  of 
guilt.  Thus  Judge  Story,  in  a  case  already  cited,  after  noticing 
that  insanity,  as  a  general  rule,  produces  irresponsibility,  went  on 
to  say :  "An  exception  is,  when  the  crime  is  committed  by  a  party 
Avhile  in  a  fit  of  intoxication,  the  law  allowing  not  a  man  to  avail 
himself  of  the  excuse  of  his  own  gross  vice  and  misconduct,  to 
shelter  himself  from  the  legal  consequences  of  such  crime."  Lord 
Hale  says  :  "  The  third  sort  of  madness  is  that  which  is  dementia 
affectata,  namely  drunkenness.     This  vice  doth  deprive  a  man  of 

See  supra,  §  92.  2  Co.  Litt.  247,  a. 

201 


§  210.]        MENTAL    UNSOUNDNESS    IN    ITS    LEGAL    RELATIONS. 

his  reason,  and  puts  many  men  into  a  perfect  or  temporary  frenzy ; 
but  by  the  laws  of  England,  such  a  person  shall  have  no  privileges 
by  his  voluntarily  contracted  madness,  but  shall  have  the  same 
judgment  as  if  he  were  in  his  right  senses."^  And  so  Parke,  B.,  a 
very  authoritative  English  crown  judge,  said  to  a  jury  in  1837  : 
"  I  must  also  tell  you  that,  if  a  man  makes  himself  voluntarily 
drunk,  it  is  no  excuse  for  any  crime  he  may  commit  whilst  he  is  so  ; 
he  takes  the  consequences  of  his  own  voluntary  act,  or  most  crimes 
would  go  unpunished. "2  And  Alderson,  B.,  said  in  1836  :  "  If  a 
man  chooses  to  get  drunk,  it  is  his  own  voluntary  act;  it  is  very 
different  from  madness  which  is  not  caused  by  any  act  of  the  person. 
That  voluntary  species  of  madness  which  it  is  in  a  party's  power 
to  abstain  from,  he  must  answer  for."^  In  harmony  with  this  is 
the  whole  current  of  English  authority.'* 

§  210.  The  law  in  this  country  is  that  voluntary  drunkenness, 
^      ,  not  amountins;  to  permanent  insanity,  is  no  defence  to 

Drunken-  .  . 

ness  admis-  the  factum  of  guilt ;  the  only  point  about  Avhich  there 
prove  spe- "  has  been  any  doubt  being  the  extent  to  which  evidence 
cific  intent.  ^^  drunkenness  is  receivable  to  determine  the  exactness 
of  the  intent  or  the  extent  of  deliberation.  And  on  this  point  the 
prevalent  opinion  is  that  evidence  of  drunkenness  at  the  time  of 
the  offence  is  admissible  to  disprove  specific  intent  or  deliberation.' 


»  1  Hale,  7  ;  4  Black.  Com.  26 ; 
Wharton's  C.  L.  {in  loco)  ;  1  Gabbett, 
C.  L.  9. 

2  R.  V.  Thomas,  7  C.  &  P.  817. 

3  R.  V.  Meakin,  7  C.  &  P.  297. 

*  Burrow's  case,  1  Lewin  C.  C.  75  ; 
Rennie's  case,  1  Lewin  C.  C.  76 ;  1 
Russel  on  Cr.  8  ;  Wh.  Cr.  L.  8th  ed. 
§  50.  In  a  very  recent  English  case  it 
was  held  that  though  drunkenness  is 
no  excuse,  delirium  caused  by  drink- 
ing and  differing  from  drunkenness,  if 
it  produces  such  a  degree  of  madness, 
even  for  a  time,  as  to  render  a  person 
Incapable  of  distinguishing  right  from 
wrong,  relieves  him  from  criminal  re- 
sponsibility. R.  V.  Davis,  14  Cox  C.  C. 
563.  See  a  note  to  this  case  as  reported 
in  28  Moak's  English  Reports,  657,  for 

202 


a  full  statement  and  classification  of  all 
the  American  cases. 

5  In  Rogers's  case,  which  came  up  in 
1858,  before  the  New  York  court  of 
appeals,  the  law  was  thus  stated  by 
Denio,  J.  :  "  Where  a  principle  of  law 
is  found  to  be  well  established  by  a 
series  of  authentic  precedents,  and  espe- 
cially where,  as  in  this  case,  there  is 
no  conflict  of  authority,  it  is  unneces- 
sary for  the  judges  to  vindicate  its 
wisdom  or  policy.  It  will,  moreover, 
occur  to  every  mind  that  the  principle 
mentioned  is  absolutely  essential  to 
the  protection  of  life  and  property.  In 
the  forum  of  conscience  there  is  no 
doubt  considerable  difference  between 
murder  deliberately  planned  and  exe- 
cuted by  a  person   of  unclouded  Intel- 


INTOXICATION    AS   A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  211. 

§  211.  A  humane  qualification  of  the  old  law  was  in  1870  recog- 
nized by  the   supreme  court  of  Michigan,  in  an  opinion  of  much 


lect,  and  the  reckless  taking  of  life  by 
one  infuriated  by  intoxication :  but 
human  la^vs  are  based  upon  considera- 
tions of  policy,  and  look  rather  to  the 
maintenance  of  personal  security  and 
social  order,  than  to  accurate  discrimi- 
nation as  to  the  moral  qualities  of  in- 
dividual conduct.  But  there  is  in 
truth  no  injustice  in  holding  a  person 
responsible  for  his  acts  committed  in  a 
state  of  voluntary  intoxication.  It  is 
a  duty  which  every  one  owes  to  his 
fellow-men,  to  say  nothing  of  more 
solemn  obligations,  to  preserve,  so  far 
as  it  is  in  his  power,  the  inestimable 
gift  of  reason.  If  it  be  perverted  or 
destroyed  by  fixed  disease,  though 
brought  on  by  his  own  vices,  the  law 
holds  him  not  accountable.  But,  if  by 
a  voluntary  act  he  temporarily  casts  off 
the  restraints  of  reason  and  conscience, 
no  wrong  is  done  him  if  he  is  consid- 
ered answerable  for  any  injury  which 
in  that  state  he  may  do  to  others,  or  to 
society. 

"Before  proceeding  to  examine  the 
judge's  charge,  it  is  necessary  to  state 
one  other  principle  connected  with  the 
subject  of  intoxication.  I  am  of  opin- 
ion that,  in  cases  of  homicide,  the  fact 
that  the  accused  was  under  the  influ- 
ence of  intoxication  may  be  given  in 
evidence  in  his  behalf.  The  effect 
which  the  evidence  ought  to  have  upon 
the  verdict  will  depend  upon  the  other 
circumstances  of  the  case.  Thus,  in 
Eex  V.  Carroll,  which  was  a  case  of 
murder  by  stabbing,  there  was  not,  as 
the  court  considered,  any  provocation 
on  the  part  of  the  deceased,  and  it  was 
held  that  the  circumstance  that  the 
prisoner  was  intoxicated  was  not  at  all 
material  to  be  considered.  Rex  v. 
Meakin  was  an  indictment  for  stab- 
bing with  a  fork  with  intent  to  murder ; 


and  it  was  shown  that  the  prisoner 
was  the  worse  for  liquor.  Alderson, 
Baron,  instructed  the  jury  that,  with 
regard  to  the  intention,  drunkenness 
might  be  adverted  to  according  to  the 
nature  of  the  instrument  used.  'If,' 
he  said,  '  he  uses  a  stick,  you  could 
not  infer  a  malicious  Intent  so  strongly 
against  him  if  drunk,  if  he  made  an 
intemperate  use  of  it,  as  you  would  if 
he  had  used  a  different  kind  of  a  wea- 
pon ;  but,  where  a  dangerous  instru- 
ment is  used,  which,  if  used,  must 
prodiice  a  grievous  bodily  harm,  drunk- 
enness can  have  no  effect  upon  the  ' 
consideration  of  the  malicious  intent 
of  the  party.'  In  Rex  v.  Thomas,  for 
malicious  stabbing,  the  person  stabbed 
had  struck  the  prisoner  twice  with  his 
fist,  when  the  latter,  being  drunk, 
stabbed  him,  and  the  jury  were  charged 
that  drunkenness  might  be  taken  into 
consideration  where  what  the  law 
deems  sufficient  provocation  has  been 
given,  because  the  question  in  such 
cases  is,  whether  the  fatal  act  is  to  be 
attributed  to  the  passion  of  anger  ex- 
cited by  the  previous  provocation  ;  and 
that  passion,  it  was  said,  is  more  easily 
excitable  in  a  person  when  in  a  state 
of  intoxication  than  when  he  is  sober  ; 
so,  it  was  added,  where  the  question  is, 
whether  words  have  been  uttered  with 
a  deliberate  purpose,  or  are  merely 
low  and  idle  expressions,  the  drunken- 
ness of  the  person  uttering  them  is 
proper  to  be  considered.  But,  if  there 
is  really  a  previous  determination  to 
resent  a  slight  affront  in  a  barbarous 
manner,  the  state  of  drunkenness  in 
which  the  prisoner  was  ought  not  to 
be  regarded,  for  it  would  furnish  no 
excuse. 

"  It  most  generally  happens,  in  homi- 
cides committed  by  drunken  men,  that 

203 


§  211.]       MENTAL    UNSOUNDNESS    IN   ITS   LEGAL    RELATIONS. 

force.    If  a  person  (so  it  has  been  there  held)  is  subject  to  a  heredi- 
tary or  other  type  of  insanity  liable  to  be  excited  by  slight  amounts 


the  condition  of  the  prisoner  would 
explain  or  give  character  to  some  of  his 
language,  or  some  part  of  his  conduct, 
and,  therefore,  I  am  of  opinion  that  it 
would  never  be  correct  to  exclude  the 
proof  altogether.  That  it  would  some- 
times be  right  to  advise  the  jury  that 
it  ought  to  have  no  influence  upon  the 
case,  is,  I  think,  clear  from  the  fore- 
going authorities.  In  a  case  of  length- 
ened premeditation,  of  lying  in  wait, 
or  where  the  death  was  by  poisoning, 
or  in  the  case  of  wanton  killing  without 
any  provocation,  such  an  instruction 
would  plainly  be  proper. 

"Assuming  the  foregoing  positions 
to  be  established,  I  proceed  to  examine 
the  exception  to  the  charge  of  the 
judge.  It  is  difficult  to  know  precisely 
what  was  meant  by  the  request  to 
charge ;  but  I  think  its  sense  may  be 
expressed  thus :  that  drunkenness 
might  exist  to  such  a  degree,  that  nei- 
ther an  intention  to  commit  murder, 
nor  a  motive  for  such  an  act,  could  be 
imputed  to  the  prisoner.  It  was  there- 
fore asked  that  it  should  be  left  to  the 
jury  to  determine  whether  such  a  de- 
gree of  intoxication  had  been  shown  ; 
and  that  they  should  be  instructed 
that  if  it  had,  the  prisoner  should  be 
found  guilty  of  manslaughter  only. 
We  must  lay  out  of  view  as  inapplica- 
ble, the  case  of  a  person  who  had  be- 
come insensible  from  intoxication,  and 
who  was  performing  an  act  unaccom- 
panied by  volition.  There  was  nothing 
in  the  evidence  to  show  that  the  pri- 
soner's conduct  was  not  entirely  under 
the  control  of  his  will,  or  which  would 
render  it  possible  for  the  jury  to  find 
that  he  did  not  intend  to  stab  the  de- 
ceased with  his  knife.  The  mind  and 
will  were  no  doubt  more  or  less  per- 
verted by  intoxication,  but  there  was 

204 


no  evidence  tending  to  show  that  they 
were  annihilated  or  suspended.  As- 
suming, therefore,  that  the  request  did 
not  refer  to  such  a  hypothesis,  the  only 
other  possible  meaning  is  that  it  sup- 
poses the  jury  legally  might  find  that 
the  prisoner  was  so  much  intoxicated 
that  he  could  not  be  guilty  of  murder 
for  the  want  of  the  requisite  intention 
and  motive,  and  the  request  was  that 
they  might  be  so  instructed.  This 
would  be  precisely  the  same  thing  as 
advising  them  that  they  might  acquit  of 
murder  on  account  of  the  prisoner's 
intoxication,  if  they  thought  it  sufli- 
cient  in  degree.  It  has  been  shown  that 
this  would  be  opposed  to  a  well-estab- 
lished principle  of  law.  The  judge 
was  not  at  liberty  so  to  charge,  and 
the  exception  to  his  refusal  cannot  be 
sustained.  What  he  did  charge  on  the 
subject  of  intoxication  was  more  favor- 
able to  the  prisoner  than  he  had  a 
right  to  claim.  It  implies  that  if  he 
was  so  far  intoxicated  as  to  be  deprived 
of  his  reasoning  faculties,  it  was  an 
excuse  for  the  crime  of  murder,  or,  as 
perhaps  it  was  intended  to  state,  that 
he  could  not  be  guilty  of  murder.  The 
rule  which  I  have  endeavored  to  ex- 
plain assumes  that  one  may  be  con- 
victed of  murder,  or  of  other  crime, 
though  his  mind  be  reduced  by  drunk- 
enness to  a  condition  which  would 
have  called  for  an  acquittal  if  the  ob- 
liquity of  mind  had  arisen  from  any 
other  cause.  The  judge  ought  to  have 
charged,  that,  if  a  man  makes  himself 
voluntarily  drunk,  that  is  no  excuse 
for  any  crime  he  may  commit  while  he 
is  so,  and  tliat  he  must  take  the  con- 
sequence of  his  own  voluntary  act. 
(Rex  V.  Thomas,  supra.)  The  charge, 
therefore,  gave  the  prisoner  the  chance 
of  an  acquittal  to  which  he  was  not 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE   OF    CRIME.       [§  212. 

of  alcoholic  drinks — if,  in  consequence  of  indulging  in  such  drinks, 
his  mental  faculties  become  excited  to  diseased  action  to  such  extent 
that  he  loses  self-control,  if  he  was  ignorant  of  this  effect  when  so  in- 
dulging— then  he  will  be  regarded  as  rather  insane  than  intoxicated, 
and  subject  to  the  immunities  of  insanity.^  This  is  undoubtedly  in 
accordance  with  those  analogies  which  gauge  insane  delusions  by 
the  intellectual  abilities  of  patient  and  not  of  critic,  and  which  de- 
clare that  we  are  to  measure  a  man's  fears  and  passions  by  his 
character  and  temperament,  and  not  by  our  own,^  Dr.  Krafft- 
Ebing,  in  an  essay  published  in  1871,  has  vindicated  this  position 
psychologically  with  great  power  as  well  as  delicacy  of  discrimina- 
tion. He  establishes  by  copious  proof  the  fact  that  there  are  some 
temperaments  which  slight  quantities  of  spirituous  liquor  make  in- 
sane, and  he  argues  that  such  persons,  if  drinking  ignorantly,  or 
entrapped  into  drink,  should  be  covered,  pro  tanto,  with  the  immu- 
nities of  insanity. 

But,  to  constitute  such  mitigation  of  guilt,  drunkenness  must  be 
involuntary  in  the  sense  above  stated.  A  contrary  doctrine  was 
indeed  intimated  by  Judge  Robertson,  of  Kentucky,  in  an  eccentric 
opinion  already  adverted  to  ;^  but  to  view  voluntary  and  inten- 
tional drunkenness  as  an  excuse  is  without  authority  either  legal 
or  psychological.* 

§  212.  The  connection  between  drunkenness  and  insanity  is  thus 
stated  by  Griesinger :  "  That  intoxication,  when  carried  to  a  cer- 
tain degree,  as  a  dreamy  condition  with  numerous  hallucinations 
and  illusions,  really  resembles  insanity,  is  easily  understood.  Some- 
times we  see  individuals  who,  after  partaking  of  a  relatively  small 
quantity  of  spirits,  and  without  being  in  a  state  of  deep  intoxica- 
tion, but  retaining  fully  their  consciousness,  present  a  great  ten- 
entitled  ;  but  this  was  not  an  error  463.  When  drunkenness  is  voluntary, 
of  which  he  could  take  advantage."  this  position  is  without  warrant.  For 
People  V.  Rogers,  18  N.  Y.  9.  See  also  review  see  23  Am,  Journ.  of  Insan.  1. 
Friery  v.  People,  54  Barb.  319  ;  2  •  Roberts  v.  People,  19  Mich.  401. 
Keyes,  424.  2  gee  §§  34-60,  200.     See  essay  by 

In    Smith   v.    Com.,  1  Duvall,  224,     Dr.  George  Cook,  18  Am.  Journ.  of  Ins. 
Judge  Robertson  startled  the  commu-     321.     See  also  19  ibid.  448. 
nity,  by  stating  that  drunkenness  may         ^  Smith  v.  Com.,  1  Duv.  224. 
be  an  excuse  for  crime  as  a  "  transient         *  See  an  able  review  in  23  Am.  Journ. 
insanity."      This,    however,    is    repu-     of  Ins.  1 ;  and  see  SM/^ra,  §  200. 
diated  in  Shannahan  v.  Com.,  8  Bush, 

205 


§  213.]       MENTAL   UNSOUNDNESS   IN    ITS   LEGAL   RELATIONS. 

dency  to  commit  very  extravagant,  noisy,  and  foolish  acts ;  a  cir- 
cumstance which  may  be  truly  considered  as  a  symptom  of  predis- 
position to  mental  disease. 

"  Moreover,  there  occur  in  drunkards  sudden  convulsive  states 
which  resemble  epileptic  attacks,  and  which  are  sometimes  followed 
by  a  condition  of  forgetfulness  and  tranquil  delirium,  at  other  times 
by  outbreaks  of  furious  delirium,  which  has  been  termed  the  con- 
vulsive form  of  intoxication. 

"  The  habitual  drunkard,  in  whom  the  habit  is  already  far  ad- 
vanced, presents  also,  even  when  he  is  not  in  a  state  of  intoxication, 
many  signs  which  indicate  the  existence  of  an  advancing  chronic 
disease  of  the  brain,  and  which  make  him  closely  resemble  the 
mentally  diseased.  Indeed  this  condition  may  gradually  pass  into 
insanity,  and  particularly  into  dementia  ;  and  there  are  constantly 
found  in  the  brains  of  habitual  drunkards,  as  in  many  of  the  insane, 
the  results  of  passive  congestion — chronic  opacities  and  thickenings 
of  the  cerebral  membranes.  The  appetite  acquired  by  habit  is  so 
powerful  in  the  drunkard,  the  ideas  which  might  oppose  it  are  so 
weak,  and  the  will  has  become  so  paralyzed,  that  he,  even  though 
he  is  aware  that  he  renders  himself  despised  and  contemptible, 
undermines  his  constitution,  disturbs  his  domestic  happiness,  ruins 
his  business,  and  every  day  postpones  the  good  resolution  which  he 
perhaps  has  made. 

"  The  craving,  the  dizziness,  the  dulness  of  the  senses,  the  mus- 
cular feebleness,  the  stomach  complaints  from  which  he  suffers,  are, 
each  time  he  partakes,  alleviated  for  the  moment,  and  it  may,  per- 
haps, be  partly  owing  to  the  fact  that  these  disorders  require  each 
day  to  be  remedied  that  drunkenness  is  often  so  inveterate." 

§  213.  "  Of  all  the  various  forms  of  chronic  insanity,  drunken- 
ness especially  appears  to  possess  much  in  common  with  general 
paralysis.  Besides,  incompletely  developed  forms,  which  in  a 
medico-legal  point  of  view  are  often  very  difficult  to  judge  of,  are 
very  common. 

"  These  slight  chronic  mental  anomalies  observed  in  the  drunkard 
are  manifested  by  very  apparent  mental  dulness,  loss  of  the  sense 
of  duty,  and  in  general  of  all  the  higher  sentiments :  conscience 
and  the  sense  of  truth  are  blunted,  the  intellect  is  generally  en- 
feebled, especially  the  memory,  frequently  slight  or  well-marked 
hallucinations  also  exist.  Numerous  other  anomalies  of  the  nervous 
20t> 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE    OF    CRIME.       [§  214. 

system  also  present  themselves ;  tremors  of  the  hands  and  of  the 
tongue,  deadening  of  the  sense  of  sight  and  of  touch,  debility  of 
the  genital  organs  ;  the  patient  has  formications  and  cramps  in  his 
limbs,  giddiness,  sometimes  epileptic  attacks  of  greater  or  less 
severity ;  sooner  or  later  marasmus  and  dropsy  may  set  in,  with 
the  usual  local  affections  (gastric  disease,  emphysema,  cirrhosis  of 
the  liver,  Bright's  disease,  etc.).  The  children  of  drunkards  very 
frequently  die  early  from  convulsions  ;  many  of  them  are  idiots, 
imbeciles,  or  microcephalic  ;  or  in  later  life  they  present  the  same 
disposition  to  drunkenness,  insanity,  and  crime. "^ 

3.  While  intoxication  per  se  is  no  defence  to  the  fact  of  guilt,  yet, 
when  the  question  of  intent  or  premeditation  is  concerned,  it  may 
he  proved  for  the  purpose  of  determining  the  precise  degree. 

§  214.    This  position  should  be  very  jealously  guarded,  since, 
as  has  already  been  remarked,  there   are  few  cases  of 

,.,  ..,       .  ,.,       ,        Tp      1  Degree  may 

premeditated  violent  homicide,  in  which  the  deiendant   te'deter- 

does  not  previously  nerve  himself  for  the  encounter  by    f^c^^^f  ^ 

liquor,  and  there  would  in  future  be  none  at  all,  if  the    drunken- 

.  .         .  .  ness. 

fact  of  being  in  liquor  at  the  time  is  enough  to  disprove 

the  existence  of  premeditation.  The  true  view,  therefore,  would 
seem  to  be,  not  that  the  fact  of  liquor  having  been  taken  is  of  any 
value  at  all  on  the  question  of  intent  or  premeditation,  but  that 
when  there  is  no  evidence  of  premeditation  aliunde,  and  where  the 
defendant  is  proved  at  the  time  of  the  occurrence  to  be  in  a  state  of 
mental  confusion  of  which  drink  was  the  cause,  the  fact  of  such 
mental  confusion  may  be  received  to  show  either  that  there  was  no 
specific  intent  to  take  life,  or  that  there  was  no  positive  premedita- 
tion.2  In  the  cases  arising  out  of  the  statutes  resolving  murder 
into  two  degrees,  in  which  the  distinguishing  test  is  a  specific 
intent  to  take  life,  this  position  receives  several  pregnant  illustra- 
tions. Thus,  in  the  Philadelphia  riot  cases  of  1814,  where  it  was 
shown  that  bodies  of  men  were  inflamed  by  sectarian  and  local  pre- 
judices, and  blinded  by  a  wild  apprehension  of  danger  to  such  an 
extent  as  to  make  them  incapable  of  discrimination,  or  of  precise  or 
specific  purpose,  it  was  held  that  they  could  not  be  considered  as 

>  Griesinger's  Mental  Path.,  Syden.  ^  gpe   cases    detailed  in  Wh.  Cr.  L. 

ed.  (1867)  §  100.  8th  ed.  §  51. 

207 


§  214  ]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

guilty  of  that  species  of  "wilful  and  deliberate"  murder  which 
constitutes  murder  in  the  first  degree/  Precisely  analogous  to 
this  is  the  case  of  the  drunkard,  who  in  a  fight  slays  an  antagonist 
■without  any  sober  reflection.  In  his  intoxication  he  is  incapable 
of  such  mental  action  as  the  term  "  premeditate"  describes.  His 
mental  condition  may  be  such  as  to  deprive  him  of  the  capacity  to 
form  a  "  specific  intent"  either  to  take  life,  or  to  do  anything  else. 
And  yet  at  the  same  time,  at  common  law,  the  offence  would, 
strictly  speaking,  fall  under  the  head  of  murder,  for  it  would  pos- 
sess the  incident  of  malice,  and  would  be  without  due  provocation. 
Under  such  circumstances  the  offence  properly  is  to  be  ranked  as 
murder  in  the  second  degree,  and  so  has  it  repeatedly  been  decided 
by  the  courts.^ 


•  Wharton  on  Homicide,  371,  2. 

2  Wh.  Cr.  L.  8th  ed.  §§  52,  381  et 
seq.,  and  cases  there  cited.  Com.  v. 
Jones,  1  Leigh,  612  ;  Boswell  v.  Com., 
20  Gratt.  860  ;  Com.  v.  Hart,  2  Brewst. 
546  ;  Com.  v.  Haggerty,  Lewis,  Cr.  L. 
402;  Pirtle  v.  State,  9  Humph.  663; 
Swan  V.  State,  4  Humph.  131 ;  Penna.  v. 
M'Fall,  Add.  257  ;  People  v.  Hammell, 
2  Parker,  C.  C.  (N.  Y.)  223  ;  People  v. 
Robinson,  ibid.  235.  In  a  case  in  Ten- 
nessee, the  court  thus  speak  :  "  Upon 
the  trial,  there  was  evidence  that  the 
prisoner  was  intoxicated  at  the  time 
he  committed  the  homicide.  Upon  the 
siibject  of  the  defendant's  intoxication 
he  told  the  jury  that  'voluntary  in- 
toxication is  no  excuse  for  the  commis- 
sion of  crime  ;  on  the  contrary  it  is 
.considered  by  our  law  as  rather  an  ag- 
gravation ;  yet,  if  the  defendant  was  so 
deeply  intoxicated  by  spirituous  liquors 
at  the  time  of  the  killing  as  to  be  in- 
capable of  forming  in  his  mind  a  design 
deliberately  and  premeditately  to  do 
the  act,  the  killing  under  such  a  state 
of  intoxication  would  only  be  murder 
in  the  second  degree.'  It  is  insisted 
that  his  honor  did  not  state  the  prin- 
ciple upon  this  subject,  as  it  has  been 
ruled   by  this  court.     In  the  case   of 

208 


Swan  V.  The  State,  Judge  Reese,  who 
delivered  the  opinion  of  the  court, 
says:  'But,  although  drunkenness  in 
point  of  law  constitutes  no  excuse  or 
justification  for  crime,  still,  when  the 
nature  and  essence  of  a  crime  are  made 
to  depend  by  law  upon  the  peculiar 
state  and  condition  of  the  criminal's 
mind  at  the  time,  and  with  reference 
to  the  act  done,  drunkenness,  as  a  mat- 
ter of  fact,  affecting  such  state  and 
condition  of  the  mind,  is  a  proper  sub- 
ject for  consideration  and  inquiry  by 
the  jury.  The  question  in  such  case 
is,  what  is  the  mental  status  ?  Is  it 
one  of  self-possession,  favorable  to  a 
fixed  purpose,  by  deliberation  and  pre- 
meditation ;  or  did  the  act  spring  from 
existing  passion,  excited  by  inadequate 
provocation,  acting,  it  may  be,  on  a 
peculiar  temperament,  or  upon  one 
already  excited  by  ardent  spirits  ?  In 
such  a  case  it  matters  not  that  the 
provocation  was  inadequate,  or  the 
spirits  voluntarily  drank  ;  the  question 
is,  did  the  act  proceed  from  sudden 
passion,  or  from  deliberation  or  pre- 
meditation ?  What  was  the  mental 
status  at  the  time  of  the  act,  and  with 
reference  to  the  act  ?  To  regard  the 
fact  of  intoxication   as  meriting   con- 


INTOXICATION    AS    A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  215. 

§  215.  The   same   general  view  is  taken  as  to  the   question  of 
intent  in  other  cases.     Thus  it  is  now  the  settled  rule  in  Enorland 


sideration  in  siich  a  case,  it  is  not  to 
hold  that  drunkenness  will  excuse 
crime,  but  to  inquire  whether  the  very 
crime  which  the  law  defines  and  pun- 
ishes has  been  in  point  of  fact  com- 
mitted. In  these  remarks  the  court 
intend  to  be  understood  as  distinctly 
indicating,  that  a  degree  of  drunken- 
ness by  which  the  party  was  greatly 
excited,  and  which  produced  a  state  of 
mind  unfavorable  to  deliberation  and 
premeditation,  although  not  so  exces- 
sive as  to  render  the  party  absolutely 
incapable  of  forming  a  deliberate  pur- 
pose, might  be  taken  into  considera- 
tion by  a  jury,  in  determining  whether 
the  killing  was  done  with  premedita- 
tion and  deliberation.'  The  whole  sub- 
ject was  ably  reviewed  by  Judge  Tur- 
ley,  in  the  case  of  Pirtle  v.  The  State. 
In  delivering  the  opinion  of  the  court 
in  that  case,  the  judge  says,  at  page 
671 :  '  It  will  frequently  happen  neces- 
sarily, when  the  killing  is  of  such  a 
character  as  the  common  law  desig- 
nates as  murder,  and  it  has  not  been 
perpetrated  by  means  of  poison,  or  by 
lying  in  wait,  that  it  will  be  a  vexed 
question,  whether  the  killing  has  been 
the  result  of  sudden  passion  produced 
by  a  cause  inadequate  to  mitigate  it  to 
manslaughter,  but  still  sufficient  to 
mitigate  it  to  murder  in  the  second  de- 
gree, if  it  be  really  the  true  cause  of 
the  excitement,  or  whether  it  has  been 
the  result  of  premeditation  and  deli- 
beration ;  and  in  all  such  cases,  what- 
ever view  is  able  to  cast  light  upon  the 
mental  status  of  the  offenders  is  legiti- 
mate proof;  and  among  others,  the  fact 
that  he  was  at  the  time  drunk  ;  not  that 
tHis  will  excuse  and  mitigate  the  of- 
fence, if  it  were  done  wilfully,  deliber- 
ately, maliciously,  and  premeditately 
(which  it  might  well  be,  though  the 
VOL.  I. — 14 


perpetrator  was  drunk  at  the  time)  ; 
but  to  show  that  the  killing  did  not 
spring  from  a  premeditated  purpose, 
but  sudden  passion,  excited  by  inade- 
quate provocation,  such  as  might  rea- 
sonably be  expected  to  arouse  sudden 
passion  and  heat,  to  the  point  of  taking 
life,  without  premeditation  and  deli- 
beration.' Here  the  court  explicitly 
lays  down  the  rule  to  be,  that  in  all 
cases  where  the  question  is  between 
murder  in  the  first  and  murder  in  the 
second  degree,  the  fact  of  drunkenness 
may  be  proved,  to  shed  light  upon  the 
mental  status  of  the  oflfender,  and  there- 
by to  enable  the  jury  to  determine 
whether  the  killing  sprung  from  pre- 
meditated purpose,  or  from  passion  ex- 
cited by  inadequate  provocation.  And 
the  degree  of  drunkenness  which  may 
then  shed  light  upon  the  mental  state 
of  the  offender,  is  not  alone  that  exces- 
siv.e  state  of  intoxication,  which  de- 
prives a  party  of  the  capacity  to  frame 
in  his  mind  a  design  deliberately  and 
premeditately  to  do  an  act ;  for  the 
court  says  that,  in  the  state  of  drunk- 
enness referred  to,  a  party  well  may  be 
guilty  of  killing  wilfully,  deliberately, 
maliciously,  and  premeditately ;  and, 
if  he  so  kill,  he  is  guilty  as  though  he 
were  sober.  The  principle  laid  down 
by  the  court  is,  that,  when  the  question 
is,  can  drunkenness  be  taken  into  con- 
sideration in  determining  whether  the 
party  be  guilty  of  murder  in  the  second 
degree,  the  answer  must  be,  that  it 
cannot ;  but,  when  the  question  is, 
what  was  the  actual  mental  state  of 
the  perpetrator,  at  the  time  the  act 
was  done,  was  it  one  of  deliberation 
and  perpetration,  then  it  is  competent 
to  show  any  degree  of  intoxication  that 
may  exist,  in  order  that  the  jury  may 
judge,  in    view  of  such    intoxication, 

209 


§  215.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS, 

Same  view     that,  though  drunkenness  is  no  excuse  for  crime,  it  may  be 

taken  in  ,  .  ,     i  i        •  •  -,      ■  ^ 

England  as  taken  into  account  by  the  jury  when  considering  the 
Infmt.^  motive  or  intent  of  a  person  acting  under  its  influence.^ 
So,  also,  in  an  Ohio  case,  it  was  very  properly  held  that, 
when  the  charge  was  knowingly  passing  counterfeit  money  with 
intent  to  cheat,  the  drunkenness  of  the  defendant  at  the  time  of  the 


in  connection  with  all  the  other  facts 
and  circumstances,  whether  the  act 
was  premeditately  and  deliberately 
done.  The  law  often  implies  malice 
from  the  manner  in  which  the  killing 
was  done,  or  the  weapon  with  which 
the  blow  was  stricken.  In  such  case 
it  is  murder,  though  the  perpetrator 
were  drunk.  And  no  degree  of  drunk- 
enness will  excuse  in  such  case,  unless 
by  means  of  drunkenness  an  habitual 
or  fixed  madness  be  caused.  The  law 
in  such  cases  does  not  seek  to  ascertain 
the  actual  state  of  the  perpetrator's 
mind,  for,  tlie  fact  from  which  it  is 
implied  having  been  proved,  the  law 
presumes  its  existence,  and  proof  in 
opposition  to  this  presumption  is  irre- 
levant and  inadmissible.  Hence  a 
party  cannot  show  he  was  so  drunk  as 
not  to  be  capable  of  entertaining  a 
malicious  feeling.  The  conclusion  of 
law  is  against  him.  But,  when  the 
question  is,  whether  a  party  is  guilty 
of  murder  in  the  first  degree,  it  be- 
comes indispensable  that  the  jury 
should  form  an  opinion  as  to  the  ac- 
tual state  of  mind  with  which  this  act 
was  done.  All  murder  in  the  first  de- 
gree (except  that  committed  by  poison, 
and  by  lying  in  wait)  must  be  per- 
petrated wilfully,  deliberately,  mali- 
ciously, and  premeditately.  The  jury 
must  ascertain,  as  a  matter  of  fact, 
that  the  accused  was  in  this  state  of 
mind  when  the  act  was  done.  Now, 
according  to  the  cases  of  Swan  v.  The 
State,  and  Pirtle  v.  The  State,  any  fact 
that  will  shed  light  upon  this  subject 
may  be  looked  to   by  them,   and  may 

210 


constitute  legitimate  proof  for  their 
consideration.  And  among  other  facts, 
any  state  of  drunkenness  being  proved, 
it  is  a  legitimate  subject  of  inquiry,  as 
to  what  influence  such  intoxication 
might  have  had  upon  the  mind  of  the 
offender,  in  the  perpetration  of  the 
deed.  We  know  that  an  intoxicated 
man  will  often,  upon  a  slight  provoca- 
tion, have  his  passions  excited  and 
rashly  perpetrate  a  criminal  act.  Now, 
it  is  unphilosophical  for  us  to  assume 
that  such  a  man  would,  in  the  given 
case,  be  chargeable  with  the  same  de- 
gree of  premeditation  and  deliberation 
that  we  would  ascribe  to  a  sober  man, 
perpetrating  the  same  act  upon  a  like 
provocation.  It  is  in  this  view  of  the 
question,  that  this  court  held,  in 
Swan's  case  and  in  Pirtle's  case,  that 
the  drunkenness  of  a  party  might  be 
looked  to  by  the  jury,  with  the  other 
facts  in  the  case,  to  enable  them  to  de- 
cide whether  the  killing  was  done  de- 
liberately and  premeditately.  But  his 
honor,  the  circuit  judge,  told  the  jury, 
that  drunkenness  was  an  aggravation 
of  the  offence,  unless  the  defendant 
was  so  deeply  intoxicated  as  to  be  in- 
capable of  forming  in  his  mind  a  design 
deliberately  and  premeditately  to  do 
the  act.  In  this  charge  there  is  error, 
for  which  the  judgment  must  be  re- 
versed. Reverse  the  judgment,  and 
remand  the  cause  for  another  trial." 
Haile  v.  State,  11  Humph.  154. 

1  R.  V.  Gamlen,  1  F.  &  F.  90 ;  R.  v. 
Monkhouse,  4  Cox  C.  C.  55 ;  R.  v. 
Stopford,  11  Cox  C.  C.  643. 


INTOXICATION    AS    A    DEFENCE    TO   CHARGE   OF   CRIME.       [§  216. 

offence  was  a  fit  subject  for  the  consideration  of  the  jury,  there  being 
no  ground  to  suppose  that  the  defendant  knew  the  money  to  be  coun- 
terfeit before  he  was  drunk. ^  And  when  in  England  the  defendant 
was  indicted  for  an  attempt  to  commit  suicide  by  drowning,  and  it 
was  alleged  that  she  was  at  the  time  unconscious  of  the  nature  of 
her  act  from  drunkenness,  Jervis,  C.  J.,  said  to  the  jury:  "  If  the 
prisoner  was  so  drunk  as  not  to  know  what  she  was  about,  how  can 
you  find  that  she  intended  to  destroy  herself  ?"2 

§  216.    Beyond   this   the    advance    has   been   fluctuating.     The 
furthest  step  taken  was  in  an  English  case,  decided  in   unsettled 
1819,3  where  Holroyd,  J. ,  is  reported  by  Sir  W.  Russell,    opinion 

.  .    .  ,  ,  .  ,     ,  where  pro- 

who  adopts  his  opinion  as  text  law,  to  have  said  that  the  vocation 
fact  of  drunkenness  might  be  taken  into  consideration  to 
determine  the  question  whether  an  act  was  premeditated  or  done 
only  with  sudden  heat  and  impulse.  This  would  make  drunkenness 
an  item  in  every  question  of  provocation  or  hot  blood,  and  would 
of  course  open  the  way  to  the  same  difficulties  as  to  general  policy, 
which  we  have  already  pointed  out  in  another  connection.  In 
1835,  however,  this  case  was  expressly  repudiated  by  Parks,  J., 
who  said,  in  referring  to  Holroyd,  J.'s,  language,  as  just  given, 
"  Highly  as  I  respect  that  late  excellent  judge,  I  differ  from  him, 
and  my  brother  Littledale  agrees  with  me.  He  once  acted  upon 
that  case,  but  afterwards  retracted  his  opinion.  There  is  no  doubt 
that  that  case  is  not  law.  I  think  there  would  be  no  safety  in 
human  life  if  it  were  to  be  considered  as  law."^  But  the  very  next 
year,  Alderson,  B.,  in  a  case  of  stabbing,  retraced  at  least  a  part 
of  the  retreat  which  had  been  thus  so  emphatically  sounded.  "  It 
is  my  duty  to  tell  you,"  he  said,  "  that  the  prisoner  being  intoxi- 
cated does  not  alter  the  nature  of  the  offence.  If  a  man  chooses  to 
get  drunk,  it  is  his  own  voluntary  act ;  it  is  very  different  from  a 
madness  which  is  not  caused  by  any  act  of  the  person.  That 
voluntary  species  of  madness  which  it  is  in  a  party's  power  to 
abstain  from,  he  must  answer  for.  ITotvever,  witJi  regard  to  the 
intenti07i,  drunkenyiess  may  2}erhaps  be  adverted  to  according  to  the 

'  Pigman   v.    State,    14    Ohio,    555  ;        ^  'K.  v.  Moore,  reported  6  Law  Rep. 
affirmed,    but   limited,    in    Nichols   v.     (N.  S.)  581,  3  C.  &  K.  319. 
State,  8  Ohio  St.  435.     See  also  U.  S.  v.        3  R.  v.  Grindley,  1  Russ.  on  Cr,  9th 
Roudenbush,  1  Bald.  514.  ed.  12,  note  2. 

<  R.  V.  Carrol,  7  C.  &  P.  145. 

211 


§  217.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

nature  of  the  instrument  used.  If  a  man  uses  a  stick,  you  would 
not  infer  a  malicious  intent  so  strongly  against  him,  if  drunk, 
when  he  made  an  intemperate  use  of  it,  as  you  would  if  he  had 
used  a  different  kind  of  weapon;  hut,  where  a  dangerous  instru- 
ment is  used,  which,  if  used,  must  produce  grievous  bodily  harm, 
drunkenness  can  have  no  effect  on  the  consideration  of  the  mali- 
cious intent  of  the  party. ''''^  Perhaps  this  is  doing  no  more  than 
reiterating  the  principle  we  have  already  announced,  that,  when 
there  is  evidence  of  sober  premeditation,  intermediate  drunkenness 
cannot  be  received  to  affect  the  question  of  intent ;  but  that,  when 
there  is  no  such  evidence,  it  can.  And  it  would  not  be  right  to 
strain  further  than  this  the  following  charge,  in  1837,  by  Parke,  B. 
(to  be  distinguished  from  Park,  J.,  whose  opinion,  two  years  before, 
has  been  just  noticed)  :  "  I  must  tell  you  that,  if  a  man  makes 
himself  voluntarily  drunk,  that  is  no  excuse  for  any  crime  he  may 
commit  while  he  is  so ;  he  must  take  the  consequence  of  his  own 
voluntary  act ;  or  most  crimes  would  otherwise  be  unpunished. 
But  drunkenness  may  be  taken  into  consideration  in  cases  where 
what  the  law  deems  sufficient  provocation  has  been  given  ;  because 
the  question  is,  in  such  cases,  whether  the  fatal  act  is  to  be  attri- 
buted to  the  passion  of  anger,  excited  by  the  previous  provocation, 
and  that  passion  is  more  easily  excitable  in  a  person  when  in  a  state 
of  intoxication,  than  when  he  is  sober.  So,  where  the  question  is 
whether  words  have  been  uttered  with  a  deliberate  purpose,  or  are 
merely  low  and  idle  expressions,  the  drunkenness  of  the  person 
uttering  them  is  proper  to  be  considered.  But,  if  there  is  really  a 
previous  determination  to  resent  a  slight  affront  in  a  barbarous 
manner,  the  state  of  drunkenness  in  which  the  prisoner  was  ought 
not  to  be  regarded,  for  it  would  furnish  no  excuse.  You  will 
decide  whether  the  subsequent  act  does  not  furnish  the  best  means 
of  judging  what  the  nature  of  the  previous  expression  really  was."* 
§  217.  The  American  cases  present  the  same  general  result, 
depending  in  principle,  if  not  in  terms,  on  the  position  that, 
Drunken-  where,  in  prosecutions  for  violence,  the  encounter  was 
ness  reie-      sudden,  and  the  defendant,  prior  to  such  encounter,  had 

vanton  '  ....  ,        .  ' 

issue  of        no  malice  or  old  grudge,  intoxication  at  the  time  oi  the 
ma  ice.         encounter  can  be  taken  into  consideration,  to  ascertain 

»  R.  V.  Meakin,  7  C,  &  P.  297.  «  R.  v.  Thomas,  7  C.  &  P.  817. 

212 


INTOXICATION   AS    A    DEFENCE    TO    CHARGE   OF   CRIME.       [§  217. 

whether  the  defendant,  when  under  a  legal  provocation,  acted  from 
malice  or  from  sudden  passion,^  and  whether  the  act  done  was  speci- 
fically intended.  But  if  malice  or  specific  intent  to  do  the  criminal 
act  is  proved  aliunde,  then  intoxication  at  the  time  does  not  lower 
the  grade  of  offence.^  The  same  distinction  is  applicable,  mutatis 
mutandis,  to  prosecutions  for  other  offences. 

[§§  218-228  are  omitted  in  this  edition  for  the  purpose  of  con- 
densation.] 

»  See  Schaller  v.  State,  14  Mo.  502.  2  See   cases   in  Wh.  Cr.  L.  8tli  ed. 

§  54  et  seq, 

213 


§  230.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 


CHAPTER  VI. 


INSANITY  AS  RELATED  TO  LIFE  INSURANCE. 


Question  one  of  construction  of  policy, 

§  229. 
In  England,  "  by  liis  own  hand  or  act" 

covers  all  intentional  suicide,  §  230. 
This  view  repudiated  by  supreme  court 

of  U.  S.,  §  231. 
Test  in  New  York,  §  232. 
Rule  in  Massachusetts   and   Maine,  § 

233. 
Rule  in  other  states,  §  234. 
Distinctive  ruling  in  Kentucky,  §  235. 


Rule  in  England  as  to  phrase  ' '  die  by 
suicide,"  §  236. 

Rulings  in  this  country,  §  237. 

"  In  the  known  violation  of  the  law  of 
any  state"  does  not  extend  to  in- 
sanity, §  238. 

"Sane  or  insane"  is  a  good  condition, 
§  239. 

Right  and  wrong  test  not  applicable, 
§240. 

Suicide  not  conclusive  evidence  of  in- 
sanity, §  241. 


§  229.  The  clauses  in  the  insurance  policies  which  provide  that 
the  policies  shall  be  void  if  the  insured  party  kills  him- 
one  of  con-  Self,  are  usually  worded  in  one  of  two  ways.  Either  the 
oT'^oUcv  phi'ase  "shall  die  by  his  own  hand  or  act"  is  used,  or 
the  shorter  phrase,  "  shall  die  by  suicide."^  We  shall 
now  consider  the  constructions  which  have  been  put  upon  these 
phrases  by  the  various  courts  to  whose  judgment  they  have  been 
submitted. 

§  230.  The  first  of  these  phrases  was  considered  by  the  English 
In  England  court  of  common  pleas  in  1842.^  In  1838,  the  insured, 
being,  it  was  claimed  at  the  time,  of  unsound  mind,  cast 
himself  from  Vauxhall  bridge  into  the  Thames,  and 
was  drowned.  In  an  action  on  the  policy,  the  jury 
found  that  the  insured  "  voluntarily  threw  himself  into 
the  river,  knowing  at  the  time  that  he  should  thereby  destroy  his 
life,  and  intending  thereby  to  do  so,  but  that  at  the  time  of  com- 


■  by  his 
own  hand 
or  act" 
covers  all 
intentional 
suicide. 


'  For  other  forms  see  Bliss  on  Life 
Ins.  2d  ed.  §  228. 
2  Borradaile  v.  Hunter,  5   Scott,  N. 

214 


R.  418;  5  M. 
Ins.  R.  280. 


&  G.  639;  2  Big.  Life 


INSANITY    AS    RELATED    TO    LIFE    INSURANCE.  [§  231. 

mitting  the  act  he  was  not  capable  of  judging  between  right  and 
wrong."  It  was  held  by  Maule,  Erskine,  and  Coltman,  JJ.,  that 
on  this  verdict  judgment  should  be  entered  for  the  defendant.  Two 
of  the  judges  laid  much  stress  on  the  fact  that  the  words  "  die  by 
his  own  hands,"  and  not  "  suicide,"  were  used  in  the  exception. 
"  When  I  find,"  says  Erskine,  J.,  "  the  terms  '  shall  commit  suicide,' 
that  have  been  popularly  understood  and  judicially  considered  as 
importing  an  act  of  criminal  self-destruction,  exchanged  for  words 
not  hitherto  so  construed,  it  may,  I  think,  be  fairly  inferred  that 
the  terms  adopted  were  intended  to  embrace  all  cases  of  intentional 
self-destruction,  unless  it  can  be  collected  from  the  immediate  con- 
text that  the  parties  used  them  in  a  more  limited  sense." 

§  231.    But  the  supreme  court  of  the  United   States  has  not 
assented  to  this  construction.    In  a  case  brought  before    „, .     . 

=>  This  view 

it  in  1872,^  the  case  of  Borradaile  v.  Hunter  was  re-    repudiated 

T    T  ...  T         p     1  T  by  supreme 

lied  on  as  authoritative,  and  the  words  oi   the  policy    court  of 

TT       Q 

having  been  "die  by  his  own  hand,"  the  fact  that  the  "  ' 
deceased  took  poison  was  argued  to  be  conclusive  in  favor  of  the 
insurance  company.  But  Mr.  Justice  Hunt,  in  delivering  the 
opinion  of  the  court  (Strong,  J.,  dissentiente) ,  said:  ''We  hold 
the  rule  on  the  question  before  us  to  be  this  :  If  the  assured,  being  in 
the  possession  of  his  ordinary  reasoning  faculties,  from  anger,  pride, 
jealousy,  or  a  desire  to  escape  from  the  ills  of  life,  intentionally 
takes  his  own  life,  there  can  be  no  recovery.  If  the  death  is 
caused  by  the  voluntary  act  of  the  assured,  he  knowing  and  intend- 
ing that  his  death  shall  be  the  result  of  his  act,  but  when  his  rea- 
soning powers  are  so  far  impaired  that  he  is  not  able  to  understand 
the  moral  character,  the  general  nature,  consequences,  and  effect  of 
the  act  he  is  about  to  commit,  or  when  he  is  impelled  thereto  by  an 
insane  impulse  Avhich  he  has  not  the  power  to  resist,  such  death  is 
not  within  the  contemplation  of  the  parties  to  the  contract,  and  the 
insurer  is  liable."  "  Nor,"  said  he,  "  do  we  see  any  difference, 
for  this  purpose,  in  the  meaning  of  the  expressions  commit  suicide, 
take  his  own  life,  or,  die  by  his  own  hand."  This  opinion  Avas 
approved  in  the  case  of  Insurance  Co.  v.  Rodel;^  and  it  was  held  in 
the  latter  case  that  evidence  tending  to  show  that  the  insured  was 

1  Life  Ins.  Co.  i-.  Terry,  15  WalL  580.         2  95  U.  S.  232. 

215 


§  233.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL    RELATIONS, 

insane  at  the  time  of  committing  the  act  which  caused  his  death 
should  not  be  taken  from  the  jury,  as  it  is  for  them  to  pass  upon  its 
weight. 

§  232.  The  court  of  errors  of  Xew  York,  in  1853,  affirming  a 
-jgg^jj^  decision  of  the  supreme  court,^  on  a  policy  whose  excep- 

NewTork.  -j-^Qn  was  in  the  words  "by  his  own  hands,"  rejected,  by 
a  vote  of  five  to  three,  the  construction  of  the  English  courts,  and 
held  that  "  dying  by  his  own  hands"  meant  felonious  and  criminal 
suicide,  and  that  where  the  self-killing  was  insane  the  policy  was 
not  avoided.  This  is  substantially  followed  by  the  subsequent  cases 
in  that  state,  but  the  "  right  and  wrong"  test  was  distinctly  repu- 
diated in  the  next  case  that  arose  ;^  it  being  also  maintained  that 
the  former  case  of  Breasted  v.  The  Farmer's  L.  &  T.  Co.  was  distin- 
guishable from  the  case  of  Life  Ins.  Co.  v.  Terry,  as  in  the  latter 
case  the  question  of  the  capacity  of  the  deceased  to  appreciate  the 
moral  character  of  the  act  was  not  involved  ;  and  that  Breasted' s 
case  was  furthermore  distinguishable  from  Borradaile  v.  Hunter,  as 
in  that  case  the  judge  assumed  that  the  act  was  voluntary,  which 
fact  was  not  proved  in  Breasted's  case.  The  conclusion  was  that  to 
take  a  case  out  of  the  proviso,  on  the  ground  of  insanity,  the  assured 
must  have  been  so  mentally  disordered  as  not  to  understand  that  the 
act  he  committed  would  cause  his  death,  or  he  must  have  committed 
it  under  the  influence  of  some  insane  impulse  which  he  could  not 
resist ;  it  would  not  be  sufficient  that  his  mind  was  so  impaired  that 
he  was  not  conscious  of  the  moral  obliquity  of  his  act.  The  later 
cases  follow  this  conclusion.^ 

§  233.  In  Massachusetts,  in  1862,  it  was  ruled  that  where  the 

policy  was  conditioned  to  be  void  in  case  the  assured 
Massachu-  died  by  his  own  hand,  it  was  avoided  by  self-destruction 
Maine^*^       knowingly  caused  in  a  fit  of  insanity.-*     Similar  facts 

appeared  in  a  later  case,^  in  which  the  doctrine  that  inten- 

i  Breasted  v.  The  Loan  Co.,  8  N.  Y.  evidence    of    insanity    and    to   decide 

299.  whether  it   is    sufficient    to  go  to  the 

2  Van  Zandt  v.  Ins.    Co.,   55  N.  Y.  jury  and  warrant  a  verdict.     Fowler  v. 
169  ;  4  Big.  Life  Ins.  Rep.  313.  Ins.  Co.,  4  Lans.  202. 

3  McClure  v.  Ins.  Co.  55  N.  Y.  651  ;  *  Dean  v.  Ins.  Co.,  4  Allen,  96. 
Weed  V.  Ins.  Co.,  70  N.  Y.  561 ;  New-  5  Cooper  v.  Ins.  Co.,  102  Mass.  227 
ton  V.  Ins.  Co.,  76  N.  Y.  426.     It  is  for  (1869)  ;  3  Big.  Life  Ins.  Rep.  656. 
the  judge,  consequently,  to  weigh  the 

216 


INSANITY    AS    RELATED    TO    LIFE   INSURANCE.  [§  234. 

tional  self-killing,  though  the  party  was  at  the  time  insane,  avoided 
a  policy,  was  reaffirmed ;  Chapman,  C.  J.,  saying  that  in  this  case 
"  there  was  no  offer  to  prove  the  madness  of  delirium,  or  that  the 
act  of  self-destruction  was  not  the  result  of  the  will  and  intention  of 
the  party,"  etc.  The  proviso  in  that  policy  used  the  words  "  die 
by  suicide,"  and  the  court  held  that  there  was  no  difference  between 
the  various  forms  in  this  respect,  the  object  of  all  being  to  guard 
against  intentional  suicide.  The  supreme  court  of  Maine,  also, 
appears  to  approve  of  the  doctrine  that  suicide  will  avoid  a  policy 
unless  it  is  unintentional  or  caused  by  delirium.  For,  in  the  only 
case  in  which  the  subject  has  been  treated  by  that  court,^  though 
it  was  held  that  the  plaintiff  in  an  action  on  a  policy  of  insurance 
could  recover  by  showing  that  the  party  insured  committed  suicide 
unintentionally  in  a  fit  of  insanity,  care  was  taken  to  say  that 
there  was  no  intention  of  departing  in  this  respect  from  the  position 
taken  by  the  supreme  court  of  Massachusetts. 

§  234.   A  charge  which  almost  repeated  the  words  of  the  New 
York  court  in  Van  Zandt's  case  has  been  approved  by   j^^^^  .^ 
the  supreme  court  of  Minnesota;^  and  in  like  manner   other 

.  .  states. 

the  court  of  appeals  in  Maryland^  affirmed  a  charge  which 
gave  to  the  insured  only  the  benefit  of  the  proviso  recognized  by 
the  New  York  and  Massachusetts  cases ;  and  it  seems  to  be  gene- 
rally thought  that  the  great  weight  of  authority  in  this  country 
sustains  the  ruling  of  these  cases,  that  there  can  only  be  a  recovery 
if  the  deceased  killed  himself  in  a  fit  of  insanity  which  over- 
powered his  reason,  consciousness,  and  will.  But  the  opinion  of 
the  supreme  court  of  the  United  States  in  Life  Ins.  Co.  v.  Terry, 
which  was  said  by  the  New  York  court  of  appeals  to  be  obiter  on 
the  question  whether  a  consciousness  that  the  act  was  wrong  took  the 
insured  out  of  the  exception,^  has  been  approved,  and  on  that  very 
point,  by  a  later  decision  of  the  supreme  court,  as  was  before 
noticed.^     And  it  has  been  expressly  followed  in  Pennsylvania,^ 

'  Eastabrook  r.  Ins.  Co.,  54  Me.  224.  see  Gay   v.   Ins.   Co.,  9   Blatch.   142 

2  Scheffer  v.  Ins.  Co.,  25  Minn.  534.  Nimick  v.  Ins.  Co.,  3  Brewst.  502  ;  Co- 

8  Ins.  Co.  V.  Peters,  42  Md.  414.  verston  v.  Ins.  Co.,  4  Big.  L.  Ins.  Rep. 

*  Van  Zandt's  case,  ubi  supra.  169  ;  following  Life  Ins.  Co.  v.  Terry,  is 

6  Supra,    §   231.     For   circuit   court  Moore  v.  Ins.  Co.,  3  Ins.  L.  J.  444. 

cases  deprived  of  their  authority  by  ^  jng.  Cq.  y.  Groom,  86  Penn.  St.  92. 

the  decision  in  Lif    Ins.  Co.  v.  Terry,  In  this  case,  it  is  true,  the  policy  was 

217 


§  235.]       MENTAL   UNSOUNDNESS   IN   ITS    LEGAL    RELATIONS. 


Georgia,^  and  Louisiana,^  which  makes  a  conflict  of  authority  not 
to  be  overlooked.  It  is  to  be  noticed  that  some  cases  rest  on  the 
ground  that  insanity  is  a  disease,  and  that  as  policies  of  life  insur- 
ance are  especially  designed  to  protect  and  provide  against  dis- 
ease, such  policies  cover  the  case  of  suicide  by  insanity .^  And  in 
one  case  an  examination  of  the  authorities  was  declined  as  unprofit- 
able, and  the  decision  was  made  solely  upon  the  ground  of  disease.^ 
§  235.  In  1869,  the  words,  "  if  he  shall  die  by  his  own  hands 
this  policy  shall  be  void,"  came  up  for  construction  be- 

Distinctive  i         ./  ?         ^  r        ^  _ 

ruling  in  fore  the  supreme  court  of  Kentucky,  in  a  case  where  it 
en  ucy.  ^^^^  averred  "  that  the  fatal  shot  was  the  involuntary  off- 
spring of  a  momentary  paroxysm  of  moral  insanity  which  subjected 
his  will  and  impelled  the  homicide  beyond  the  power  of  self-control 
or  successful  resistance."  The  court  was  equally  divided  on  the 
question  whether  this  state  of  facts  avoided  the  policy,  though  the 
judges  seem  to  have  concurred  in  the  opinion  that  there  would  be 
no  avoidance  where  the  suicide  was  in  "  the  madness  of  delirium." 
The  case,  however,  is  chiefly  remarkable  for  the  bold  statement  of 


■worded  "shall  die  by  suicide,"  but 
in  America  the  different  phrases  are 
regarded  as  synonymous.  Infra,  §  237. 
At  the  argument  Sharswood,  C.  J., 
asked  the  counsel  if  this  were  not  so  ; 
but  the  point  was  not  noticed  in  the 
opinion,  and  the  opinion  followed  a 
case  in  which  the  phrase  used  was, 
"  die  by  his  own  hands."  In  the  case 
ot  Ins.  Co.  V.  Isett,  74  Peun.  St.  176, 
the  court  below  charged  :  "If  the  as- 
sured was  not  conscious  of  the  act  he 
was  committing,  but  acted  under  an 
insane  impulse  or  delusion  sufB.cient 
to  impair  his  understanding  or  will,  or 
if  his  reason  was  so  far  overthrown 
by  his  mental  condition  that  he  was 
Incapable  of  exercising  his  judgment  in 
regard  to  the  consequences,  the  defendants 
are  liable;"  and,  furthermore,  nega- 
tived one  of  the  defendants'  points,  to 
the  effect  that  there  could  be  no  re- 
covery if  at  the  time  of  his  death  the 
assured  was  conscious  that  death  would 
follow.      This    charge    was     affirmed. 

218 


These  cases  practically  overrule  Hart- 
man  V.  Ins.  Co.,  21  Penn.  St.  466, 
where  Black,  C.  J.,  said  that  standing 
alone  the  words  ' '  die  by  his  own 
hands,"  mean  any  sort  of  suicide. 

'  Life  Association  i\  Waller,  57  Ga. 
533  ;  Merritt  v,  Ins.  Co.,  55  Ga.  103. 

2  Phillips  V.  Ins.  Co.,  26  La.  Ann. 
404. 

3  Breasted  v.  The  Loan  Co.,  8  N.  Y. 
299  ;  Ins.  Co.  v.  Groom,  86  Penn.  St. 
92;  Phadenhauer  v.  Ins.  Co.,  7  Keisk. 
(Tenn.)  567. 

*  Ins.  Co.  V.  Moore,  34  Mich.  41. 
"  Death  by  his  own  hands  in  the  case 
of  one  non  compos  is  as  much  the  result 
of  disease  as  death  by  fever  or  con- 
sumption," were  the  words  of  the 
court;  "the  very  object  of  life  insur- 
ance is  to  provide  for  death  by  disease 
or  in  the  ordinary  coarse  of  nature." 
And  it  was  held  that  the  policy  could 
only  be  avoided  when  the  person  was 
felo  de  se,  and  there  was  criminality  in 
the  act. 


INSANITY   AS    RELATED    TO    LIFE   INSURANCE.  [§  236. 

opinion  by  Robertson,  J.,  concurred  in  by  Peters,  J.,  that  "  there 
may  be  moral  as  well  as  intellectual  insanity,  and  essentially  con- 
tradistinguished from  it."^  But  this  view  was  emphatically  repu- 
diated by  Williams,  C.  J.,  with  whom  concuri'ed  Hardin,  J.,  form- 
ing, therefore,  two  out  of  the  four  judges  by  whom  the  case  was 
heard.  "The  doctrine  of  moral  insanity,"  said  Williams,  C.  J., 
"  ever  dangerous  as  it  is  to  the  security  of  the  citizen's  life,  and 
pregnant  as  it  is  with  evils  to  society,  has  but  little  or  no  applica- 
tion to  this  case.  Too  uncertain  and  intangible  for  the  practical 
consideration  of  juries,  and  unsafe  in  the  hands  of  even  the  most 
learned  and  astute  jurist,  it  should  never  be  resorted  to  for  exemp- 
tion from  responsibility  save  on  the  most  irrefragable  evidence, 
developing  unquestionable  testimony  of  that  morbid  or  diseased 
condition  of  the  affections  or  passions  so  as  to  control  and  over- 
power or  subordinate  the  will  before  the  act  complained  of ;  for  if 
the  act  is  to  be  evidence  of  moral  insanity  for  the  suicide,  so  it  will 
be  for  the  homicide,  the  parricide,  the  seducer  and  the  ravisher." 
And,  in  respect  to  the  position  of  the  court  below,  that,  if  "  at  the 
instant  of  the  commission  of  the  act  his  (the  deceased's)  will  was 
subordinated  by  any  uncontrollable  passion  or  emotion  causing  him 
to  do  the  act,  it  was  an  act  of  moral  insanity,  and  they  ought,  if 
they  so  believe,  to  find  for  the  plaintiff,"  he  declared  that,  "  in  all 
the  vague,  uncertain,  intangible,  and  indefined  theories  of  the  most 
impracticable  metaphysicians  on  psychology  and  moral  insanity,  no 
court  of  last  resort  in  England  and  America,  so  far  as  has  been 
brought  to  our  knowledge,  ever  before  announced  such  a  startling, 
irresponsible,  and  dangerous  proposition  of  law." 

§  236.  In  1846,  the  question  as  to  the  construction  of  the  phrase 

"  die  by  suicide,"  came  before  the  English  exchequer   ^  ,   . 

•^  '  .  Rule  in 

chamber^  on  the  following  facts:  Louis  Schwabe,  in  1836,    Enejiand  as 

insured  his  life  for  ^£999  with  the  defendants,  the  excep-    '>°d?eby^^ 

tion  in  this  case  being  that  "  every  policy  eifected  by  a    ^^^'^i'^'^- 

person  on  his  own  life  shall  be  void,  if  such  person  shall  commit 

suicide,  or  die  by  duelling,  or  the  hands   of  justice."     Schwabe 

died  in  1845,  and,  on  a  suit  on  the  policy,  it  was  shown  that  he 

voluntarily  poisoned  himself  with   sulphuric   acid,  under  circum- 

'  See   for   a   fuller   abstract   of  this  N.  S.  Ch.  53  ;  Stormont  v.  Assurance 

opinion,  supra,  §  178.  Co.,  1  F.  &  F.  22  ;   Dufaur  v.  Ins.  Co., 

8  Clift  V.  Schwabe,  3  Man.  &  Gr.  437  ;  25  Beav.  599. 
see  "White  ik  Assurance  Co.,  38  L.  J. 

219 


§  237.]       MENTAL   UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 

stances  tending  to  show  that  he  was  of  unsound  mind.  On  the 
trial,  Creswell,  J.,  charged  the  jury,  "  that,  in  order  to  find  the 
said  issue  for  the  defendants,  it  was  necessary  that  the  jury  should 
be  satisfied  that  Schwabe  died  by  his  own  voluntary  act,  being  then 
able  to  distinguish  between  right  and  wrong,  and  to  appreciate  the 
nature  and  quality  of  the  act  that  he  was  doing,  so  as  to  be  a 
responsible  moral  agent ;  that  the  burden  of  proof  as  to  his  dying 
by  his  own  voluntary  act  was  on  the  defendants,  but,  that  being 
established,  the  jury  must  assume  that  he  was  of  sane  mind,  and  a 
responsible  moral  agent,  unless  the  contrary  should  appear  in  evi- 
dence." It  was  held,  on  a  bill  of  exception,  by  Rolfe,  Patteson, 
Alderson,  and  Parke,  JJ.  (Wightman,  J.,  and  Pollock,  0.  B.,  dis- 
senting), that  this  direction  was  erroneous,  and  that  the  law,  as 
stated  by  Rolfe,  B.,  was,  "  that  every  act  of  self-destruction  is,  in 
common  language,  suicide,  provided  it  be  the  intentional  act  of  a 
party  knowing  the  probable  consequence  of  what  he  is  about." 

§  237.  There  have  been,  in  comparison,  but  few  cases  before  the 
„  ,.      .       American   courts   in   which   the   policies  were  worded 

Rulings  m  _  _   ^  _         ^ 

thiscoun-      "shall  die  by  suicide,"  and  it  has  been  held,  and  by 

try. 

cases  sustaining  each  of  the  opposing  doctrines,  that 
there  is  no  difference  in  meaning  between  the  two  phrases  ;^  that  is 
to  say  that  whatever  construction  is  to  be  put  upon  the  proviso  in 
relation  to  the  question  of  insane  suicide,  the  contract  between  the 
insurer  and  insured  is  the  same,  no  matter  which  phrase  is  used. 
In  Massachusetts,  as  we  have  already  seen,  where  a  policy  used 
the  phrase  "  die  by  suicide,"  it  was  held  that  mere  insanity  does 
not  take  a  case  out  of  the  exceptions.^  So  it  was  held  in  a  case  in 
Tennessee^  (1872),  in  which  the  right  and  wrong  test  was  distinctly 
adopted,  and  Terry  v.  Ins.  Co.,*  as  it  was  decided  in  the  circuit 
court,  was  followed,  the  words  of  the  policy  being  "  die  by  suicide." 
In  a  recent  (1875)  case  in  Vermont,*  the  words  were  the  same, 
and  the  lower  court  charged  the  jury  that  it  was  not  enough  that 
the  insured  was  unable  to  distinguish  right  from  wrong,  but  his 
mind  must  have  been  so  unsound  that  it  couW  be  seen  that  the  un- 
soundness killed  him  ;  that,  if  his  mind  was  overthrown  by  an  insane 

'  Life  Ins.   Co,  v.  Terry,  ubi  supra;        '  Pliadenliauer  v.  Ins.  Co.,  7  Heisk. 

Estabrook  v.  Ins.  Co.,  54  Me.  224.  567. 

2  Cooper  V.  Ins.  Co.,  102  Mass.  277,         *  1  Dill.  C.  C.  403. 
supra,  §  233.  «  Hathaway  v.  Ins.  Co.,  48  Vt.  335. 

220 


INSANITY   AS   RELATED    TO   LIFE   INSURANCE.  [§  239. 

idea  that  he  must  take  his  own  life,  and  the  idea  controlled  himself 
and  his  reasoning  faculties  to  that  extent  that  he  could  not  resist  it, 
so  that,  although  his  own  mind  contrived  the  means  by  which  his 
life  was  taken,  and  his  physical  strength  carried  them  out  and  took 
it,  in  reality  this  insane  idea  or  impulse,  and  not  his  mind  or  his 
will,  took  his  life,  the  insurers  were  liable.  This  charge  the 
supreme  court  declared  was  quite  as  favorable  to  the  insurance  com- 
pany as  the  law  allowed,  and  that  a  degree  of  insanity  short  of 
delirium  or  frenzy  would  excuse  the  act  of  suicide.  It  was  further 
ruled  that  it  does  not  follow  that  because  an  insane  man  knows  that 
if  he  blows  his  brains  out  it  will  kill  him,  and  that  he  does  the  act  for 
that  purpose,  therefore  the  act  was  that  of  a  sane  mind,  voluntarily 
and  deliberately  done.^  In  a  Pennsylvania  case  already  cited,  in 
which  the  words  were  "  shall  die  by  suicide,"  the  court  followed 
Life  Ins.  Co.  v.  Terry,  saying,  however,  nothing  as  to  the  difference 
in  phraseology  between  the  policy  in  that  case  and  the  policy  be- 
fore it.^ 

§  238.  It  has  been  held,  in  New  York,  that,  in  the  absence  of 
any  stipulation,  a  policy  taken  out  for  the  benefit  of  a    u];Qthe 
third  party  will  not  be  avoided  by  the  subsequent  suicide    known  vio- 

^ .      -^  "^  .  ^  lation  of 

of  the  insured.^     In  a  later  case  it  was  argued  that  the    the  law  of 
act  would  be  covered  by  the  proviso  against  the  death    doesVot^ 
of  the  insured,  "in  the  known  violation  of  the  law  of  ing^ni^*'^ 
any  state,"  but  this  was  disallowed.* 

§  239.  Of  late  the  insurance  companies  have  endeavored  to  guard 
themselves  against  insane  suicide  by  extending  the  proviso  to  read 

>  But  it  is  probable  that  the  jury  3  pitch  v.  Ins.  Co.,  59  N.  Y.  557. 

found  that  the  deceased  had  committed  ■•  Patrick   v.    Ins.  Co.,  4  Hun,  263. 

suicide  under  the  influence  of  an  insane  See  May  on  Insurance,  2d  ed.  §  324. 

impulse  which  he  could  not  resist,  as  There  are  two  strong  dicta  in  Pennsyl- 

the  verdict  was  against  the  insurance  vania  to  the  efi"ect  that   even  in  the 

company,  which  would  bring  the  case  absence  of  any  stipulation,  a  suicide 

within  the  proviso  as  specified  in  Van  by  the  insured  would  be  a  fraud  upon 

Zandt's  case  and  in  Dean's  case.    If  this  the  company,  and  hence  would  avoid 

be  so,  as  the  charge  to  the  jury  more  the  policy.     Black,  C.  J.,  in  Hartman 

nearly  approached  the   rule  in  those  v.  Ins.  Co.,  21  Penn.  St.  466,  who  com- 

cases  than  the  rule  in  Terry's  case,  the  prehended  in  this  the  case  of  an  insane 

remarks  of  the  supreme  court  quoted  suicide  ;  and  Trunkey,  J.,  in   Bank  of 

above  must  be  taken  to  be  obiter.  Oil  City  v.  Ins.   Co.,  6  Leg.  Gaz.  348  ; 

2  Ins.  Co.  V.  Groom,  86  Penn.  St.  92,  5  Big.  Life  Ins.  Rep.  478. 
supra,  §  234. 

221 


§  240.]       MENTAL   UNSOUNDNESS   IN    ITS   LEGAL   RELATIONS. 


"Sane or  "if  the  insured  shall  die  by  suicide,  sane  or  insane," 
agoodcon-  etc.  That  the  companies  have  a  right  to  do  so  is  in- 
dition.  dubitable,  and  it  has  been  held  that  the  only  construc- 

tion to  be  given  to  these  words  is  the  one  that  they  bear  on  their 
face,  namely,  that  the  company  in  case  of  suicide  is  to  be  exempt 
from  all  liability.^  But  they  are  not  meant  to  cover  the  case  of 
unintentional  self-destruction.^ 

§  240.  It  is  not  necessary  for  the  defendant  to  show  that  there 
*was  a  capacity  on  the  part  of  the  deceased  to  distinguish 
right  from  wronor.  This  is  aside  from  the  issue.  That 
issue  is,  did  the  assured  intend,  freely  and  intelligently, 
to  destroy  himself  ?  What  his  views  of  right  and  wrong 
were  on  the  subject  is  immaterial.  Suicide  may  have  appeared  to 
him  under  the  circumstances  even  a  meritorious  act ;  but  this  would 
not  take  the  case  out  of  the  exception.  If  he  intended  to  do  the  act 
freely — ^.  e,,  without  constraint  of  an  irresistible  force,  mechanical 
or  moral ;  and  if  he  intended  to  do  it  intelligently — i.  e.,  if  his 
mind,  when  acting  on  the  particular  topic,  was  unswayed  by  insane 
delusion,  then  the  exception  covers  the  case,  and  the  policy  is 
avoided.     And  this  brings  the  law  on  this  point  in  harmony  with 


Right  and 
■wrong  test 
not  appli- 
cable. 


'  Bigelow  V.  Ins.  Co.,  93  U.  S.  284 
Chapman  v.  Ins.  Co.,  6  Biss.  238 
Mallory  v.  Ins.  Co.,  54  N.  Y.  651 
De  Gogorza  v.  Ins.  Co.,  65  N.  Y.  232 
Pierce  v.  Ins.  Co.,  34  Wis.  389  ;  Ad- 
kins  V.  Ins.  Co.,  70  111.  27. 

2  Pierce  v.  Ins.  Co.,  34  Wis.  389. 
Thus,  death  by  an  overdose  of  medi- 
cine, self-administered,  does  not  avoid 
such  a  policy;  Penfold  v.  Ins.  Co.  (N. 
Y.  Court  of  Appeals,  1881),  11  Law 
Rep.  849;  Lawrence  v.  Ins.  Co.,  5 
Brad.  (111.)  280 ;  unless  there  -was 
culpablfe  negligence  ;  Ins.  Co.  v.  Law- 
rence, 8  Brad.  488. 

In  a  letter  from  Horace  Walpole  to 
Bentley,  dated  Jan.  9,  1755,  we  have 
the  following  : — 

"On  the  occasion  of  Mountford's 
story  I  heard  another  more  extraordi- 
nary. If  a  man  insures  his  life,  this 
killing   himself  vacates   the   bargain. 

222 


This  (as  in  England  almost  everything 
begets  a  contradiction)  has  produced 
an  office  for  insuring  in  spite  of  self- 
murder,  but  not  beyond  three  hundred 
pounds.  A  man  went  and  insured  his 
life,  securing  this  privilege  of  free- 
dying  Englishmen.  He  carried  the 
insurers  to  dine  at  a  tavern,  where 
they  met  several  other  persons.  After 
dinner  he  said  to  the  life-and-death 
brokers,  '  Gentlemen,  it  is  fit  you 
should  be  acquainted  with  the  com- 
pany ;  these  honest  men  are  trades- 
men to  whom  I  was  in  debt,  without 
any  means  of  paying  but  by  your  assist- 
ance ;  and  here  I  am  your  humble 
servant.'  He  pulled  out  a  pistol  and 
shot  himself.  Did  you  ever  hear  such 
a  mixture  of  honesty  and  knavery?" 
Similar  agreements  have  been  held 
void  as  against  public  policy.  Moore 
V.  Woolsey,  4  E.  &  B.  243. 


INSANITY    AS   RELATED   TO   LIFE   INSURANCE. 


[§  241. 


the  general  doctrine  of  insane  delusions  already  declared.^  If  the 
deceased  did  not  know  what  he  was  doing  when  he  killed  himself, 
he  can  be  no  more  said  to  "  have  laid  violent  hands  on  himself,"  or 
"  to  have  committed  suicide,"  than  he  could  be  if  his  hand  had 
been  seized  by  superior  force  and  thus  made  to  discharge  at  his 
breast  a  fatal  shot.  No  man  can  be  charged  Avith  an  act  done  by 
him  in  blind  terror,  or  in  unconsciousness,  or  under  a  strain  of 
mental  or  moral  compulsion  which  deprives  him  of  his  reason.^  And 
if  he  be  thus  impelled  to  the  act,  the  act  is  not  chargeable  as  his. 

§  241.  The  pathological  character  of  suicide  is  here-    g^^jpi^g  ^q^ 
after  distinctively  discussed.^     It  is  enough  now  to  say    conclusive 

...        *      cvidcncG  of 

that  suicide  is  not  conclusive  evidence  of  insanity  in  re-   insanity, 
spect  to  a  will  executed  even  immediately  previous. 


«  Supra,  §§  125-145. 

2  See  supra,  §  108  et  seq. 

3  Infra,  §§  523,  636.  See  an  in- 
teresting paper  by  Dr.  Ordronaux,  in 
20  Am.  Journ.  of  Ins.  369  ;  an  arti- 
cle by  Royal  Whitman,  in  American 
■Tourn,  of  Med.  Sci.  clxiv.  p.  472  ;  and 
articles  in  34  Am.  Journ.  Ins.  425  ;  35 
ibid.  37  ;  and  a  letter  to  the  editor  of 
the  Journ.  Ment.  Sci.,  vol.  23,  p.  107. 

*  Chambers  v.  Queen's  Proctor,  2 
Curt.  415  ;  Burrows  v.  Burrows,  1 
Hagg.  109  ;  Wolff  v.  Ins.  Co.,  7  Rep. 
357 ;  Brooks  v.  Barrett,  7  Pick.  94  ; 
Coffey  V.  Ins.  Co.,  44  How.  481  ;  Weed 
V.  Ins.  Co.,  70  N.  Y.  561;  Duffield  v. 
Robeson,  2  Harr.  375  ;  Ins.  Co.  v. 
Peters,  42  Md.  414 ;  McElwee  r.  Fer- 
guson, 43  Md.  479  ;  Merritt  v.  Ins.  Co., 
55  Ga.  103  ;  Phadenhauer  v.  Ins.  Co., 
7  Heisk.  (Tenn.)  567  ;  Com.  v.  Thorn- 
ley,  47  111.  192  ;  Hathaway  v.  Ins.  Co., 
48  Vt.  335.  See  May  on  Ins.  2d  ed. 
§  325. 

As  illustrating  this  we  have  (1872) 
the  following : — 

"  At  an  early  period  of  his  life,  Lord 
Bathurst  inquired  of  an  old  Bishop  of 
Ely  what  was  his  secret  for  insuring 
longevity.  '  Your  question  is  too  gene- 
ral, my  lord,'  replied  the  prelate,  'but 
if  you  will  ask  me  any  particular  ques- 


tion, I  will  give  you  a  specific  answer.' 
'  Then,  as  to  eating,  my  lord  V  said 
Lord  B.  '  Why,  my  lord,  I  eat  what  I 
like,  and  as  much  as  I  like.'  'Next, 
as  to  drinking?'  '  Why,  with  regard 
to  drinking,  my  lord,  I  observe  pre- 
cisely the  same  rule  ;  I  drink  what  I 
like  and  as  much  as  I  like.'  '  Excel- 
lent rules  !'  replied  Lord  B.,  '  which  I 
am  determined  punctually  to  follow.' 
Lord  B.  did  follow  these  rules  to  hilar- 
ity, but  rarely  to  intemperance.  He 
lived  to  the  advanced  age  of  ninety- 
one.  Another  rule  which  his  lordship 
invariably  pursued  contributed,  doubt- 
less, much  more  to  the  prolongation  of 
his  life  than  the  Epicurean  code  of  the 
Bishop  of  Ely.  This  was  bodily  exer- 
cise in  riding  and  walking,  with  which 
he  suffered  neither  pleasure  nor  busi- 
ness to  interfere,  and  which  he  habit- 
ually practised  till  within  a  short  time 
of  his  death.  For  this  practice,  after 
his  retirement  from  public  life,  he  had 
great  facilities  in  the  extensive  and 
various  walks  on  his  ample  domain  at 
Cirencester.  In  the  autumn  of  the 
year  1775,  a  slight  disease  occurred  in 
one  of  his  knees,  for  which  he  was  oc- 
casionally visited  by  Sir  Caesar  Haw- 
kins. The  malady,  though  somewhat 
aggravated   by   a   fall   on   a   polished 

223 


§  241.]      MENTAL   UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 


floor  in  his  own  house,  was  apparently 
of  no  further  consequence  than  as  it 
interfered  with  his  accustomed  rides 
and  walks  in  his  park.  On  Thursday, 
September  9,  1775,  Mr.  Parry  and  his 
eldest  son,  afterwards  Dr.  Caleb  Hillier 
Parry,  dined  with  him.  He  ate  and 
drank  in  his  accustomed  way,  was  all 
urbanity  and  mirth,  quoted  with  flu- 
ency and  exactness  many  appropriate 
lines  from  the  Latin  and  English  poets, 
and  related  many  anecdotes  of  the  wits 
who  were  the  contemporaries  of  his 
earlier  years.  Among  the  rest  he  told 
the  following  story  of  Pope,  who,  in 
the  former  part  of  his  life,  had  been 
desperately  in  love  with  Lady  Mary 
Wortley  Montague,  though  there  now 
existed  between  these  persons  the  most 
rancorous  hatred,  covered  with  the 
flimsy  veil  of  polite  civility. 

' '  '  Lady  Mary  went  one  day  to  Lord 
Burlington's,  in  Piccadilly,  and  in- 
quired if  his  lordship  was  at  home. 
The  servant  replied  that  he  was  not, 
but  that  Mr.  Pope  was  above  in  one  of 
the  drawing-rooms.  "Oh,"  said  Lady 
Mary,  "I  should  wish  to  see  him ;  show 
me  the  room."  The  servant  accord- 
ingly showed  her  up  stairs,  opened  the 
drawing-room  door,  and,  having  an- 
nounced her  name,  retired.  After  a 
short  time,  however,  hearing  the  draw- 
ing-room bell  ring,  he  reascended  the 
stairs  and  met  Lady  Mary,  who  had 
just  left  the  apartment.  "You  told 
me,"  said  she,  "that  Mr.  Pope  was  in 
the  drawing-room;  I  saw  nothing  there 
but  a  great  baboon  asleep  in  an  arm- 
chair." 

"  '  This  story  was  told  by  the  ser- 
vant to  Lord  Burlington,  and,  in  the 
usual  course  of  such  reports,  was  whis- 
pered by  some  good-natured  friend  to 
Mr.  Pope  himself.  The  indignant  poet 
shortly  afterwards  called  in  his  car- 
riage upon  Lady  Mary,  whom  he  en- 
treated to  accompany  him,  in  order,  as 

224 


he  said,  to  show  her  the  excellent 
effect  produced  by  the  substitution  of 
rails  for  the  dead  brick  wall  which  had 
intercepted,  from  the  road,  the  view  of 
Kensington  Gardens.  She  accepted  the 
invitation,  and,  notwithstanding  the 
great  imperfection  of  her  sight,  which 
she  was  extremely  averse  to  acknowl- 
edge, but  which  prevented  her  dis- 
tinguishing objects  at  the  distance  of 
twenty  feet,  most  politely  acquiesced  in 
all  the  extravagant  praises  which,  dur- 
ing an  entire  hour,  Mr.  Pope  lavished 
on  the  beautiful  scenery  which  every- 
where struck  the  view  through  the 
pretended  iron  rails.  The  exhibition 
being  ended,  Mr.  Pope  took  the  earliest 
opportunity  of  communicating  to  all 
his  friends  the  success  with  which  he 
had  thus  retorted  on  Lady  Mary  her 
illiberal  satire  on  his  personal  defects.' 

' '  When  the  company  rose,  Lord 
Bathurst  walked  with  little  apparent 
difficulty  into  an  adjoining  room. 

"  This  meal  was  the  last  that  Lord 
Bathurst  ever  ate.  Unable  on  account 
of  his  knee  to  take  his  accustomed 
exercise  in  the  open  air,  and  tired  of 
an  existence  which  was  to  be  protracted 
on  such  terms,  he  determined,  like 
Atticus,  to  cease  to  live.  Inflexible  to 
his  purpose,  from  this  moment  he  re- 
fused all  sustenance,  and  thus,  gradu- 
ally sinking,  expired  on  the  Thursday 
following  (Sept.  16),  at  the  precise  in- 
terval of  one  week  from  that  day  on 
which  the  narrator  had  witnessed  his 
almost  unrivalled  blaze  of  literary  and 
social  talents.  This  fact  respecting 
Lord  Bathurst  was  more  than  once  re- 
lated by  Mr.  Parry,  and  was  many 
years  afterwards  confirmed  to  his  son 
by  the  succeeding  earl,  who  accom- 
panied the  latter  round  the  park  in 
order  to  exhibit  those  spots  which  had 
been  so  often  the  scenes  of  his  boyish 
felicity." — From  ^1  Memoir  of  the  Rev. 
Joshua  Parry,  Nonconformist  Minister  of 


INSANITY   AS   RELATED   TO   LIFE   INSURANCE. 


[§  241. 


Cirencester,  xviili  some  original  Essays  and 
Correspondence,  hy  the  late  Charles  Henry 
Parry,  F.R.S.,  edited  by  Sir  John  E. 
Eardley  Wilmot,  Bart. ,  Recorder  of  War- 
wick. London :  Hamilton,  Adams  <f-  Co. 
1872. 

In  Wolff  V.  Ins.  Co.  (U.  S.  Cir.  Ct. 
E.  D.  Micli.  1879),  ut  supra,  Brown,  J., 
said:  "It  is  insisted,  however,  that 
the  insane  acts  relied  upon  were  sim- 
ply eccentricities  of  demeanor,  or  at 
most  temporary  hallucinations,  which 
lasted  but  a  few  minutes  at  a  time, 
and  ceased  entirely  some  months  be- 
fore his  death,  leaving  him  perfectly 
sane  and  able  to  take  care  of  his  busi- 
ness.    It  is  quite  true  there  is  no  pre- 


sumption of  the  continuance  of  insanity 
temporary  in  its  character  ;  but  I  ap- 
prehend that  in  most  if  not  all  the 
cases  that  support  that  doctrine  the 
delusions  were  connected  with  some 
bodily  disease,  such  as  fever,  pleurisy, 
or  delirium  tremens,  and  necessarily 
ceased  with  returning  health,  or  that 
they  occurred  so  long  previous  to  the 
commission  of  the  act  in  question  there 
could  be  no  possible  relation  between 
them  of  cause  and  effect.  People  v. 
Francis,  38  Cal.  183  ;  Staples  v.  Wel- 
lington, 58  Me.  459,  460  ;  Hall  v.  Unger, 
2  Abb.  U.  S.  514;  Ins.  Co.  v.  Peters, 
42  Md.  414 ;  Carpenter  v.  Carpenter,  8 
Bush,  283  ;  2  Greenl.  Ev.  689." 


VOL.  I. — 15 


225 


§  242.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   KELATIONS. 


CHAPTER   YII. 


INSANE  PEESONS  AS  WITNESSES. 


Test  is  albility  to  understand  oath, 
§242. 

Habeas  corpus  may  bring  in  insane  wit- 
ness, §  243. 


Corroboration  by  sane  witnesses  im- 
portant, §  244. 

Credibility  a  question  for  the  jury ; 
and  so  as  to  witnesses  under  influ- 
ence of  narcotics,  etc.,  §  245. 


Testis  §  242.  A  person  called  as  a  witness  is  not  rendered 

understand    i^iconipetent  by  insanity  to  be  sworn,  if  he  understands 
an  oath.        what  is  the  nature  of  an  oath.^ 


I  R.  V.  Hill,  2  Den.  C.  C.  254;  T.  & 
M.  582 ;  Fennell  v.  Tait,  1  C.  M.  &  R. 
584  ;  5  Tyr.  218  ;  Spittle  v.  Walton, 
L.  R.  11  Eq.  420  ;  Boughton  v.  Knight, 
L.  R.  3  P.  &  D.  72  ;  Holcomb  v.  Hol- 
comb,  28  Conn.  177  ;  Ins.  Co.  v.  Hunt, 
14  Hun,  169 ;  Hand  v.  Burrows,  23 
Hun,  330  ;  People  v.  N.  Y.  Hospital,  3 
Abb.  N.  C.  229,  n.  ;  Com.  v.  Reynolds, 
cited  10  Allen,  64  ;  Kendall  v.  May,  10 
Allen,  59  ;  Coleman  v.  Commonwealth, 
25  Gratt.  865  ;  Campbell  i'.  State,  23 
Ala.  44.  See  Wh.  Crim.  Ev.  §  370; 
see  also  Livingston  v.  Kiersted,  10 
Johns.  362. 

In  R.  V.  Hill,  ut  supra,  the  defendant 
(Browne's  Med.  Jur.  of  Insan.,  Lond. 
1871)  was  an  attendant  in  charge  of  a 
ward  in  a  lunatic  asylum.  He  was  in- 
dicted for  the  manslaughter  of  Moses 
James  Barnes,  one  of  the  patients  under 
his  care.  The  prisoner  was  tried  before 
Coleridge,  J.,  assisted  by  Cresswell,  J., 
at  the  central  criminal  court.  He  was 
convicted,  but  a  question  was  reserved 
for  the  opinion  of  the  court  as  to  the 

226 


propriety  of  having  admitted  a  witness 
of  the  name  of  Richard  Donelly,  who 
was  a  patient  in  Mr.  Armstrong's 
lunatic  asylum,  at  Camberwell,  on  the 
part  of  the  prosecution.  When  Donelly 
was  called,  he  was  examined  by  the 
prisoner's  counsel  before  he  was  sworn. 
In  the  course  of  the  preliminary  ex- 
amination he  said  he  was  fully  aware 
that  he  had  a  spirit,  and  twenty  thou- 
sand of  them  ;  they  were  not  all  his  ; 
they  spoke  to  him  constantly.  He 
fully  understood  the  nature  of  an  oath, 
and  declared  his  belief  in  religion,  and 
that  he  was  a  Romau  Catholic.  A 
medical  witness  believed  him  to  be 
capable  of  giving  an  account  of  any 
transaction  that  happened  before  his 
eyes.  He  was  then  sworn,  and  gave  a 
perfectly  connected  and  rational  ac- 
count of  the  transaction  which  he  re- 
ported himself  to  have  witnessed.  He 
was  not  certain  as  to  the  day  of  the 
week  on  which  the  circumstances  he 
spoke  of  took  place,  and  on  cross- 
examination  said:     "These  creatures 


INSANE    PERSONS    AS    WITNESSES. 


[§  244. 


§  243.  A  habeas  corpus  ad  testificandum  may  be  issued   Habeas  cor- 

.        .  .  p  .  ,         ,  pus  may 

to  bring  into  court  a  witness  irom  an  insane  asylum.^  brin^ 

§  244.  "It  is  well,"  remarks  Mr.  Browne,  in  the  work   ^"°^^«' 


insist  upon  it  it  was  Tuesday  niglit, 
and  I  think  it  was  Monday."  Where- 
upon he  was  asked,  "Is  what  you 
have  told  us  what  the  spirits  told  you, 
or  what  you  recollect  without  the 
spirits?"  And  he  said,  "No,  the 
spirits  assist  me  in  speaking  of  the 
date.  I  thought  it  was  Monday,  and 
they  told  me  it  was  Christmas-eve — 
Tuesday ;  but  I  was  an  eye-witness, 
an  ocular  witness,  to  the  fall  to  the 
ground."  The  question  for  the  court 
of  criminal  appeal  was — Richard  Don- 
elly's  competency  as  a  witness.  The 
accused  having  been  convicted,  the 
case  was. argued  before  Lord  Campbell, 
C.  J.,  Coleridge  and  Talfourd,  JJ.,  and 
Alderson  and  Piatt,  BB.  The  convic- 
tion was  upheld.  Lord  Campbell,  in 
delivering  his  judgment,  said:  "The 
question  is  important,  and  has  not  yet 
been  solemnly  decided  after  argument ; 
but  I  have  no  doubt  that  the  rule  was 
properly  laid  down  by  Parke,  B.,  in 
the  case  which  was  tried  before  him, 
and  that  it  is  for  the  judge  to  say 
whether  the  insane  person  has  the 
sense  of  religion  in  his  mind,  and 
whether  he  understands  the  nature 
and  sanction  of  an  oath,  and  then  the 
jury  are  to  decide  on  the  credibility 
and  weight  of  his  evidence.  .  .  . 
A  man  may,  in  one  sense,  be  non 
compos,  and  yet  be  aware  of  the  nature 
and  sanction  of  an  oath.  In  the  par- 
ticular case  before  the  court,  I  think 
the  judge  was  right  in  admitting  the 
witness  ;  I  should  certainly  have  done 
so  myself.  ...  It  has  been  argued 
that  any  particular  delusion,  commonly 


called  monomania,  makes  a  man  inad- 
missible. This  would  be  extremely 
inconvenient  in  many  cases  in  the 
proof  either  of  guilt  or  innocence ;  it 
might  also  cause  serious  difficulties  in 
the  management  of  lunatic  asylums. 
I  am,  therefore  of  opinion,  that  the 
judge  must  in  all  cases  determine  the 
competency,  and  the  jury  the  credi- 
bility. Before  he  is  sworn,  the  insane 
person  may  be  cross-examined,  and 
witnesses  called  to  prove  circumstances 
which  might  show  him  to  be  inadmis- 
sible ;  but  in  the  absence  of  such  proof 
he  is  prima  facie  admissible,  and  the 
jury  must  attach  what  weight  they 
think  fit  to  his  testimony. ' '  These  views 
have  been  adopted  in  several  recent 
cases,  though  in  many  states  parties 
who  are  of  unsound  mind  at  the  time 
of  examination  are  forbidden  by  statute 
to  testify.  See  Wh.  Crim.  Ev.  §  371 ; 
Waring  v.  Waring,  6  Moore's  P.  C.  C. 
p.  349  ;  Holcomb  v.  Holcomb,  28  Conn. 
177  ;  Coleman  v.  Com.,  25  Gratt.  865  ; 
Sarbach  v.  Jones,  20  Kan.  497  ;  Hand 
V.  Burrows,  23  Hun,  330  ;  Ins.  Co.  v. 
Hunt,  14  Hun,  169  ;  and  see  a  note  by 
Dr.  Ordronaux  to  People  v.  N.  Y.  Hos- 
pital, 3  Abb.  N.  C.  229.  In  this  con- 
nection, adds  Mr.  Browne  (Med.  Jur.  of 
Ins.  Mf  supra),  the  following  cases  may  be 
consulted  :  R.  v.  Eriswell,  3  T.  R.  707  ; 
Currie  v.  Child,  3  Campb.  283.  See  also 
Chapman  v.  Greaves,  2  Campb.  333,  n.  ; 
Adams  v.  Kerr,  1  Bos.  &  P.  360  ;  Cun- 
cliflfe  V.  Sefton,  2  East,  183  ;  and  Ber- 
nett  V.  Taylor,  9  Ves.  Jr.  381 ;  R.  v. 
Morley,  quoted  in  R.  z;.  Hill. 

The  Journal  of  Mental  Science  for 


»  Spittle  V.  Walton,   L.   R.    11   Eq.  420  ;  40  L.  J.  Chanc.  368.    See  Fennell 
V,  Tait,  ut  supra. 

227 


§  245.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 


Corrobora-  already  cited,  "  in  all  cases  in  which  the  evidence  of  per- 
sane  wit-  sons  of  unsound  mind  is  had  recourse  to,  to  endeavor  to 
portant™'     Corroborate  the  testimony  in  some  particulars,  at  least, 

by  means  of  the  depositions  of  sane  witnesses.  The  im- 
portance of  this  rule  will  be  made  manifest  by  the  statement  of  the 
evidence  of  James  Sumner,  an  inmate  in  the  Birmingham  Borough 
Lunatic  Asylum,  by  means  of  which  William  Braley,  a  warden  in 
said  asylum,  was  a  few  weeks  ago  proved,  to  the  satisfaction  of  the 
stipendiary,  to  have  caused  the  death  of  a  man  named  John  Hinton. 
The  prisoner  Braley  was  committed  for  trial  at  the  next  assizes."^ 
§  245.  In  another  work  it  is  shown  that  deficiency  in  perceptive 

powers  in  a  witness,  if  total,  excludes;^  that  a  witness 


for  jury;       maybe  examined  as  to  his  capacity;^  that  credibility 
and  so  as      depends  not  only  on  veracity,  but  on  competency  to 
observe  ;^  that  incapacity  to  relate   may  affect  compe- 


to  wit- 
nesses un- 
der Influ-  ,,..,. 

enceofnar-  tency  ;^  that  intoxicated  witnesses  may  be  excluded;^ 
^°  ^^^^  '  and  that  credibility  is  generally  for  the  jury.''  The 
same  remarks  apply  to  witnesses  testifying  to  facts  which  trans- 
pired while  they  were  under  the  influence  of  chloroform  or  ether. 
In  cases  of  rape,  to  be  hereafter  reported  under  that  particular  head, 


January,  1870,  mentions  an  interesting 
case  of  the  admission  of  the  testimony 
of  an  insane  witness.  A  confined 
lunatic  was  beaten  by  his  keeper,  and 
the  results  were  pleuritis  and  death. 
The  only  witness  was  a  fellow-lunatic. 
The  latter,  who  had  been  for  two 
months  convalescent,  had  suffered  from 
melancholy  with  hallucination  of  the 
senses.  His  testimony  was  exact,  and 
betrayed  no  traces  of  insanity.  Though 
the  issue  rested  on  his  credibility,  the 
defendant  was  convicted. 

A  remarkable  prosecution  was  insti- 
tuted in  Maryland,  in  1866,  against 
the  officers  of  the  Mount  Hope  Institu- 
tion for  the  Insane,  in  that  state,  the 
prosecutors  being  lunatic  patients. 
The  complaint  turned  out  to  be  un- 
founded, and  the  defendants  were  ac- 
quitted, but  there  was  no  question  as 
to  the  admissibility  of  the  prosecutors  as 

228 


witnesses,  incredible  as  some  of  their 
statements  were  afterwards  regarded. 
See  report  in  23  Am.  Journ.  of  Insan. 
311. 

'  The  prisoner  Braley,  Mr.  Browne 
states,  has,  since  the,  above  was  writ- 
ten, been  tried  and  acquitted.  The 
jury  seemed  to  place  no  reliance  upon 
the  evidence  of  Sumner,  although  he 
was  evidently  quite  sane  at  the  time 
it  was  given.  Sumner  admitted  that, 
previous  to  his  asylum  experience,  he 
had  known  something  of  prisons,  which 
may  to  some  extent  account  for  the 
verdict. 

2  Wh.  on  Ev.  §  401. 

3  lb.  §  403. 
*  lb.  §  404. 
6  lb.  §  405. 
6  lb.  §  418. 
^  lb.  §  417. 


INSANE   PERSONS   AS   WITNESSES.  *"  [§  245. 

testimony  of  this  kind  has  been  received  as  sufficient  to  sustain  con- 
victions ;  and,  unless  such  testimony  is  held  admissible  (its  credi- 
bility being  for  the  jury),  there  would  be  no  redress  for  injuries 
inflicted  on  persons  under  the  influence  of  anaesthetics.  At  the 
same  time  it  is  proper  to  call  attention  to  the  following  points  stated 
in  an  interesting  essay,  touching  the  value  of  testimony  of  this 
class,  communicated  in  1860  to  the  Ohio  Medical  Society  by  Dr.  T. 
L.  Wright,  of  Bellefontaine,  and  printed  among  the  transactions  of 
that  society: — 

"  1st.  That  will  is  always  active  when  there  is  mental  conscious- 
ness. 

"  2d.  That  will  cannot  be  directly  impressed  by  another  will, 
but  that  the  judgment  may  be  misled,  and  the  will,  though  free, 
may  act  upon  false  conceptions  in  a  manner  diff"erent  from  what  it 
would  do  if  the  mind  and  senses  were  perfectly  active. 

"  3d.  There  may  be  venereal  connection  with  a  female  while  she 
is  conscious  and  unwilling ;  but  there  may  be  no  venereal  connec- 
tion with  a  female,  while  she  may  honestly  believe  she  has  been 
under  the  delusion  of  organic  sensibilities,  occasioned  by  the  pecu- 
liar action  of  chloroform  upon  her  nervous  system. 

"  4th.  It  is  impossible  for  a  woman  very  often  to  decide  whether 
actual  connection  has  been  had  or  not. 

"5th.  The  evidence  of  a  person,  respecting  transactions  that 
occur  to  the  mind  while  partly  conscious,  is  always  liable  to  the 
most  monstrous  fallacies,  and  it  should  not  be  received  as  sufficient 
proof  of  any  fact. 

"  6th.  Evidence  of  females,  respecting  rape  upon  themselves 
while  unconscious  from  chloroform,  is  particularly  liable  to  suspi- 
cion. 

"  7th.  Evidence  of  females  respecting  rape  under  such  circum- 
stances should  be  subjected  to  all  the  rules  and  exceptions  of  cir- 
cumstantial evidence,  and  should  be  fully  corroborated  by  other 
circumstances." 

229 


§  246.]       MENTAL   UNSOUNDNESS    IN   ITS   LEGAL   RELATIONS. 


CHAPTER  yill. 


EVIDENCE. 


I.  Mode  of  Proof. 

Question  belongs  to  distinctively  legal 
treatises,  §  246. 

All  persons  presumed  to  be  sane,  §  247. 

Sanity  presumed  to  continue,  §  24S. 

Chronic  insanity  presumed  to  be  con- 
tinuous, §  249. 

In  such  cases  burden  is  on  party  set- 
ting up  lucid  interval,  §  250. 

In  criminal  cases  preponderance  of 
proof  required  to  prove  criminal 
lunacy,  §  251. 

Insanity  to  be  inferred  from  facts, 
§252. 

Physical  peculiarities  and  diseases  ad- 
missible, §  253. 

So  of  hereditary  tendency,  §  254. 

Inquisition  prwia /aae  proof,  §  255. 

Hearsay  inadmissible,  §  256. 

II.  Witnesses. 

Non-experts  as  well  as  experts  may 
give  opinion  as  to  sanity,  §  257. 

Kot  competent  as  to  occult  conditions, 
§  258. 

Non-experts  cannot  be  asked  as  to  a 
hypothetical  case,  §  259. 

Subscribing  witnesses  admissible  as  to 

■    sanity,  §  260. 

Kon-experts  admissible  as  to  drunken- 
ness, §  261. 

Experts  admissible  as  specialists,  §  262. 

Are  entitled  to  special  fees,  §  263. 


Cannot  be  examined  as  to  matter  of 
common  knowledge,  §  264. 

Whether  matter  belongs  to  expert  is 
for  court,  §  265. 

Maybe  examined  as  to  scientific  autho- 
rities, §  266. 

May  be  examined  as  to  hypothetical 
case,  but  not  as  to  disputed  facts, 
§267. 

Difiiculty  in  determining  who  are  ex- 
perts as  to  insanity,  §  268. 

No  sufficient  test  of  capacity,  §  269. 

Testimony  to  be  closely  scrutinized, 
§270. 

Difficulty  induced  by  speculative  ten- 
dencies of  experts,  §  271. 

And  from  the  fact  that  experts  are 
feed  by  parties,  §  272. 

And  because  there  is  no  expert  ap- 
pellate court,  §  273. 

Experts  should  be  assessors,  §  274. 

Their  testimony  should  not  be  specu- 
lative, §  275. 

Examinations  should  be  thorough,  § 
276. 

In  insanity  this  is  peculiarly  requisite, 
§  277. 

Prior  history  of  patient  should  be  un- 
derstood, §  278. 

III.  Books. 

Scientific  books  inadmissible,  §  279. 


I.    PROOF. 
Question  ^  246.    The  consideration  in  detail  of   the  technical 

belongs  to  •  r>       f    •  •         i     i 

distinctive-    rules    bearing  on  the    proof   of  insanity  belongs   more 
properly  to    distinctively    legal   treatises.      It   will   be 
230 


ly  legal 

treatises. 


EVIDEISrCE.  [§  250. 

sufficient  for  tlie  purposes  of  the  present  chapter  to  note  the  con- 
clusions which  in  those  works  are  given. 

§  247.   Sanity  being  the  normal  condition,  the  presumption  of 

law  is  that  all  persons  whose  conduct  comes  up  for  legal    . , 

•^  .  ±  cj        ^Yi  persons 

examination  are  sane.     It  is  true  that  there  may  be    presumed 
something  in  the  act  which  is  to  be  examined  which  is  so 
preposterous  as  to  make  it  improbable  that  it  could  have  sprung 
from  a  sane  agent.     But  this  is  a  matter  of  extrinsic  proof,  and 
does  not  aifect  the  principle  that  until  contesting  evidence  is  re- 
ceived, all  persons  are  to  be  held  sane.^ 

§•248.  In  addition  to  this  general  presumption  of  law,  bearing  on 
all  human  beings,  we  have  a  concrete  presumption  of  fact,    „ 

.  .  Sanity  pre- 

varying  with  each  special  case,  that  character  continues,    sumed  to 
and  that  a  person  who  was  sane  yesterday  is  sane  to-day.^ 

§  249.  When  chronic  insanity,  also,  has  supervened,  then  it  is  a 
presumption  of  fact  that  it  continues.     Undoubtedly  this,    du-onic  in- 
as  has  been  observed,  is  in  one  sense  a  petitio  principii,   sanity  pre- 
it  being  equivalent  to  saying  that  that  which  is  chronic    be  con- 
continues.     But  there  is  something  more  than  a  jjetitio 
princijjii  in  the  position  that  a  state  which  existed  yesterday  will 
be  presumed  to  continue  to  exist  to-day.     And  this  is  a  position 
that  applies  to  all  conditions  which  have  in  them  the  element  of 
permanence.^ 

&  250.  If  chronic  insanity  is  established,  the  burden   In  such 
'         ^  ,      ,  "^        ,  .  .  cases  bur- 

of  proving  a  lucid  interval,  during  which  an  instrument   den  is  on 

is  alleged  to  have  been  executed,  is  on  the  party  setting   tingup^ 

up  suck  instrument.^  lervai!"' 

It  is  otherwise, however,  when  the  prior  insanity  alleged 

was  spasmodic  and  parenthetical,^  or  consisted  of  delirium  tremens.^ 

•  Supra,  §§  61  et  seq.  Wh.  on  Ev.  §§  R.  163 ;  Hix  v.  Whittemore,  4  Mete. 
1226-1252.  545  ;  Trish  v.  Newell,   62  111.  196  ;    1 

2  Wh.  on  Ev.  §  1252.  Jarm.  Wills,  65. 

»  Wli.  on  Ev.  §  1253.    See  24  Alb.  L.         5  Supra,  §  61.     Lewis  v.  Baird,  3  Mc- 

J.  304.  Lean,  55  ;  Menkins  v.  Lightner,  18  111. 

*  See  cases  cited  §  61,  and  also  §  744;  282  ;  Achey  v.  Stephens,  8  Ind.  411  ; 
Wh.  on  Ev.  §  1253;  and  see  State  v.  State  v.  Wellington,  58  Maine,  453; 
Spencer,  21  N.  J.  L.,  196  ;  R.  v.  Stokes,  Trish  v.  Newell,  62  111.  196. 

3  C.  &  K.  188  ;  R.  v.  Taylor,  4  Cox  C.        6  State  v.  Sewell,  3  Jones  Law  (N.  C.) 
C.   155 ;    Cartwright   v.   Cartwright,   1     250. 
Phill.  90 ;  Hoge  v.  Fisher,  1  P.  C.  C. 

231 


§  255.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL  RELATIONS. 

Whether  the  good  sense  of  a  will  made  during  an  alleged  lucid 
interval  is  admissible  to  prove  the  intermission  of  the  insanity,  has 
been  questioned.^  But  if  the  will  be  shown  to  be  the  free  act  of  the 
person  making  it,  its  contents  must  always  be  received  as  giving 
materials  from  which  the  party's  mental  condition  can  be  inferred.^ 

§  251.  In  criminal  issues,  as  is  elsewhere  shown,  there  has  been 
.    .    ,    much  discussion  on  the  question  whether  insanity,  when 

In  criminal  ^  *' 

issues  pre-  a  defence,  must  be  proved  beyond  reasonable  doubt. 
of  proof  re-  The  better  opinion  is,  that,  to  sustain  a  verdict  of  criminal 
prove^  ^°  lunacy,  there  should  be  a  preponderance  of  proof  sus- 
criminai  taining  the  hypothesis  of  insanity,  but  that  when-  the 
defendant's  mental  condition  enters  into  the  question 
(e.  g.  in  cases  where  intention  or  knowledge  has  to  be  shown)  then 
he  cannot  be  convicted  of  an  offence  requiring  the  particular  intent 
or  knowledge  unless  it  appears  beyond  reasonable  doubt  that  he 
had  mental  capacity  for  the  purpose.^  But  in  any  view  the  burden 
of  proof  is  on  the  party  setting  up  insanity.'* 

§  252.  Insanity  is  to  be  inferred  from  all  the  facts  in  the  par- 
j       .  ticular  case  in  litigation.     Whatever  is  logically  calcu- 

be  inferred    lated  either  to  establish  or  to  repel  the  hypothesis  of 

from  facts.      .  ..,..,,  ,  .  .  "^ 

insanity  is  admissible  on  such  an  issue. ^ 
Physical  ^  253.  Physical  peculiarities  may  be  put  in  evidence 

pecuhan-  .  .  ./  i 

ties  and        when  likely  to  explain  the  party's  mental  condition; 

admissible,    and  SO  of  diseases  likely  to  have  an  effect  on  the  mind.^ 

§  254.  Proof  of  insanity  among  relations  is  also  ad- 

reditary        missible  when  the  relationship  is  sufficiently  near  to  lead 

en  ency.      ^^  ^j^^  inference  of  insanity  in  the  blood.'' 

§  255.  How  far  an  inquisition  of  lunacy  is  admissible  to  prove 
T      .  .,.        insanity  is  elsewhere  discussed.^   An  inquisition  of  lunacy 

Inquisition  ... 

prima  facie   may  be  prima  facie  evidence  when  offered  to  affect  the 

credibility  of  a  witness,  though  even  if  admissible  in  such 

a  case  it  is  open  to  rebuttal,^    When  offered  against  parties  to  the 

'  See  Jackson  r.  Van  Dusen,  5  Johns.  *  lb.  §  60. 

144.  5  wh.  on  Ev.  §  1254. 

2  Supra,  §§  61  et  seq.     Kingsbury  v.  6  \Yh..  Cr.  L.  8th  ed.  §  64. 
Whitaker,  32  La.  Ann.  1055;  34  Alb.  7  \Vh.  Cr.  L.  8th  ed.  §  65. 

L.  J.  304.  8  \vh.  on  Ef.  §§  403,  812,  1254. 

3  Wh,  Cr.  L.  8th  ed.  §  61.  ^  Wh.  on  Ev.  §  403. 

232 


EVIDENCE.  [§  257. 

procedure,  others  than  the  alleged  lunatic,  it  is  conclusive  unless 
fraud  be  shown. ^  So  far  as  concerns  third  parties,  a  finding  may- 
be admissible  to  determine  the  burden  of  proof ;  so  far  as  concerns 
the  party  himself,  who,  on  the  hypothesis  of  his  insanity,  is  incom- 
petent to  bind  himself,  it  may  be  orAj  prima  facie  proof.^ 

§  256.  Hearsay  in  a  neighborhood  is  in  any  view  in-   Hearsay  in- 
admissible, either  to  prove  or  disprove  sanity .^ 

II.    WITNESSES. 

§  257.  The  admission  in  evidence  of  the  opinions  of  friends,  of 
nurses,  and  of  attendants,  though  not  experts  in  mental    Non-ex- 
disease,  may  be  justified  on  several  grounds.    In  the  first   P^^s^as 
place,  if  such  evidence  is  excluded,  no  other  can  be  found   perts  may 
that  can  so  satisfactorily  take  its  place.     An  attendant,   ion  as  to 
who  watches  continuously  by  the  bedside  of  a  patient —   canity. 
a  business  friend  having  constant  access  to  his  counting-room — can 
form,  if  intelligent  and  experienced,  a  far  more  reliable  opinion  of 
the  patient's  mental  state,  than  could  a  medical  expert,  judging 
merely  from  occasional  visits,  visits  at  which  excitement  Avould  be 
natural,  if  not  simulation  attempted.     If  the  opinion  of  the   spe- 
cialist, on  comparatively  imperfect  information,  is  admissible,  we 
cannot  exclude  the  opinion  of  the  non-specialist.     In  the  second 
place,  opinion  is  in  most  cases  only  facts  at  short  hand,  and  this  is 

1  Wh.  on  Ev.  §§  811,  1254.  incompetency  at  any  time  covered  by 

*  lb.     See  supra,  §  13.  the  finding,  and  a  party  setting  up  a 

It  may  be  shown  that  the  inquisi-  contract  made  by  the  lunatic  or  habit- 

tion  was  ea;  parte  and  partial.     Banna-  ual  drunkard  during  this   time  must 

tyne  v.  Bannatyne,   14  Eng   Law  and  show  he  was  sane  at  its  execution,  for 

Eq.    581;    16  Jur.   864;    2   Rob.  475.  the  presumption  in  favor  of  sanity  is 

The  finding  is    not   binding  on  third  thereby  changed.     Noel  v.  Karper,  53 

parties,    and   operates   merely   to   de-  Penn.  St.  97. 

stroy  the  presumption  of  sanity,  and        Fits   of    insanity   for   twenty   years 

to  throw  the  burden  of  proving  it  on  prior  to  the  execution  of  certain  deeds 

the  party  alleging  it.     Snook  v.  Watts,  by  a  man  found  some  years  afterwards, 

11  Beav.  105;  Elliott  v.  Ince,  7  De  G.  by  a  commission,  to  have  been  all  along 

M.  &  Gr.  475.  insane,  have  been  ruled  in  England  to 

The  eifect  of  such   commissions  on  ^e  ^lo  answer  to  a  prima  facie  case,  on 

the  party  himself,  so  far  as  involves  ^.n  issue  to  his  sanity  at  the  execution 

his  right  to  contract,  has  been  already  of  the  deeds.     Ferguson  v.  Barrett,  1 

discussed.    Where  an  inquisition  finds  F.  &  F.  613.     See  Jacobs  v.  Richards, 

that  a  man  is  a  lunatic  or  habitual  18  Beav.  300. 
drunkard,  it  is  prima  facie  evidence  of        ^  Wh.  on  Ev.  §  1254. 

233 


§  257.]       MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

eminently  the  case  with  regard  to  opinions  as  to  sanity.  It  may 
be  said  that  the  facts  on  which  an  opinion  as  to  sanity  is  based 
should  be  given,  not  the  opinion.  But  when  we  inquire  for  these 
facts,  we  find  that  these  are  also  opinions.  "  My  opinion  is  that 
the  patient  was  insane."  "  From  what  facts  do  you  infer  this  ?" 
"  He  was  excited ;  he  talked  incoherently  ;  his  manner  was  wild." 
Yet  each  of  these  specifications  is  an  opinion.  If  we  are  to  reject 
opinions,  therefore,  in  such  cases,  we  must  reject  the  only  material 
from  which  a  judgment  as  to  sanity  can  be  drawn.  And  in  the 
third  place,  it  may  be  questioned  whether  the  opinion  of  an  intel- 
ligent and  experienced  observer  as  to  sanity  is  not  after  all  pri- 
mary. If  we  want  to  know  whether  a  particular  event  occurred  in 
day  or  in  night,  w^e  put  the  question  directly,  "  was  it  day  ?"  We 
do  not  ask  whether  there  was  sunlight  on  one  place  or  shadows  on 
another,  or  whether  the  objects  on  which  the  observer's  eye  was 
turned  were  radiant  in  their  specific  colors,  or  were  colorless  in  the 
darkness  of  night.  And  so  with  insanity.  It  is  a  condition  which 
impresses  itself  as  an  aggregate  on  the  observer.  We  cannot  take 
it  to  pieces.  If  we  do  the  efi'ect  is  gone.  The  grand  effect  alone 
is  that  from  which  we  are  to  judge.  It  is  true  that  we  must  give 
reasons,  if  asked,  for  this  efi'ect.  But,  after  all,  it  is  the  effect  that 
determines.  For  these  and  other  reasons  it  has  been  held  that 
non-experts,  when  intelligent  and  experienced,  may  be  asked  as  to 
their  opinion  of  the  sanity  of  a  person  with  whom  they  have  been 
well  acquainted.^ 


>  Wheeler  v.  Alderson,  3  Hagg.  602 
Wright  V.  Tatham,  5  CI.  &  F.  692 
Harrison  v.  Rowan,  3  Wash.  C.  C.  580 


Castner  v.  Sliker,  33  N.  J.  L.  95,  507; 
Townshend  v.  Townsliend,  7  Gill,  10  ; 
Weems  v.  Weems,  19  Md.   334;  Wil- 


ing. Co.  I'.  Rodel,  95  U.  S.  232  ;  Hardy  liams  v.   Lee,  47   Md,    321  ;    Clark  v. 

V.    Merrill,    56   N.   H.   227;    Cram   v.  State,  12  Ohio,  483  ;   Doe  v.  Reagan,  5 

Cram,   33   Vt.    15  j   Fairchild   v.  Bas-  Blackf.  217 ;   Beaubien  v.   Cicotte,  12 

comb,  35  Vt.   398  ;  Hathaway  v.  Ins.  Mich.  459  ;  Butler  v.  Ins.  Co.,  45  Iowa, 

Co.,  48  Vt.  335 ;  Com.   v.  Sturtivant,  93 ;    Clary   v.   Clary,   2   Ired.    L.    78 ; 

117  Mass.  122 ;  Grant  v.  Thompson,  4  Powell  v.  State,  25  Ala.  21 ;   Stuckey 

Conn.  208 ;   Kinne  v.  Kinne,  9  Conn.  v.  Bellah,  41  Ala,  700 ;  Wilkinson  v. 

102;  Real   v.  People,  42  N.   Y.   270;  Moseley,  30  Ala,  562 ;  Baldwin  y.  State, 

Fagnan  v.  Knox,  40  N.  Y.  Sup.  Ct,  41 ;  12  Mo.  223  ;  Dove  v.  State,  3  Heisk. 

Rambler  v.  Tryon,  7  S,  &  R,  90  ;  Wil-  348 ;  People   v.    Sanford,  43  Cal.  29  ; 

kinson  v.  Pearson,  23  Penn.  St.  177 ;  Pigg  v.  State,  43  Tex.  108  ;  Garrison  v. 

Titlow   V.   Titlow,  ,^4   Penn.   St.  216  ;  Blanton,  47  Tex.  299  ;    McClackey  v. 

234 


EVIDENCE. 


[§  259. 


Such  testimony,  when  given  by  persons  of  probity,  intelligence, 
and  experience,  constantly  about  the  patient,  is  more  likely,  in  cases 
of  alleged  chronic  idiocy  or  delirium,  to  lead  to  right  conclusions, 
than  is  the  testimony  of  experts,  employed  professionally,  and  pay- 
ing only  occasional  visits.^ 

§  258.  But  while  this  is  the  case  with  such  insanity  as  may  be 
readily  determined  by  non-experts,  and  in  cases  in  which 
opinion  is  a  mere  rendering  of  facts  at  short-hand,  it  is  tent  asTo^" 
otherwise  as  to  occult  conditions  of  rare  occurrence,  occuitcon- 
concerning  which  those  versed  in  the  treatment  of  the 
insane  are  best  qualified  to  speak.  As  to  these,  inexperienced  lay 
attendants  or  friends  cannot,  it  is  said,  give  opinions,  but  are  limited 
to  a  statement  of  such  facts  as  are  within  their  range  of  observa- 
tion.^  And  there  is  a  line  of  cases  ruling  that  in  no  case  can  a  non- 
expert give  an  opinion  detached  from  the  facts  on  which  it  rests. ^ 

§  259.  An  important  distinction,  however,  is  to  be  here  noticed. 
An  expert   in  mental   disease   may  be  asked  as   to  a   Non- 
hypothetical  case.     He  is  supposed  to  be  familiar  with   caunofbe 
the  workings  of  mental  disease  ;  and  the  question  put  to    asked  as  to 
him  is  virtually  this  :    "  Judging  from  your  experience    icai  case. 


State,  5  Tex.  App.  320.  That  some 
qualification  is  a  prerequisite,  see  Suth- 
erland V.  Hawkins,  56  Ind.  343. 

J  Rutherford  v.  Morris,  77  111.  397  ; 
Rankin  v.  Rankin,  61  Mo.  295. 

2  As  limiting  non-experts  to  a  bare 
statement  of  facts,  see  State  v.  Pike, 
49  N.  H.  399 ;  Com.  v.  Wilson,  1  Gray, 
337  (but  see  Hardy  v.  Merrill,  56  N.  H. 
227;  Com.  v.  Sturtivant,  117  Mass.  122) ; 
Dewitt  V.  Barley,  5  Seld.  371  ;  Clapp 
V.  FuUerton,  34  N.  Y.  190;  Real  v. 
People,  42  N.  Y.  270  ;  Sears  v.  Schafer, 
1  Barb.  408;  Higgins  v.  Carlton,  28 
Md.  115  ;  Runyan  v.  Price,  15  Ohio  St. 
1 ;  Farrell  v.  Brennan,  32  Mo.  328 ; 
Gehrke  v.  State,  13  Tex.  568.  From 
this  limitation,  however,  subscribing 
witnesses  are  excepted.  Ware  v.  Ware, 
8  Greenl.  42  ;  Poole  v.  Richardson,  3 
Mass.  330 ;  Logan  v.  McGinnis,  12  Penn. 
St.  27 ;  Titlow  v.  Titlow,  54  Penn.  St. 


216  ;   Egbert  v.  Egbert,   78   Penn.  St. 
326  ;  Elder  v.  Ogletree,  36  Ga.  64. 

3  Poole  V.  Richardson,  3  Mass.  330  ; 
Hathorn  v.  King,  8  Mass.  371  ;  Dickin- 
son V.  Barber,  9  Mass.  225  ;  Kinne  v. 
Kinne,  9  Conn.  102 ;  Vanauken  ex 
parte,  10  N,  ,J.  Eq.  186  ;  Lowe  v.  William- 
son, 2  N.  J.  Eq.  82;  Sloan  v.  Max- 
well, 3  N.  J.  Eq.  563;  Gardiner  v. 
Gardiner,  34  N.  Y.  155  ;  Sisson  v.  Con- 
ger, 1  Thomp.  &  C.  564 ;  Clapp  v.  Ful- 
lerton,  34  N.  Y.  190 ;  Howell  v.  Taylor, 
18  N.  Y.  Sup.  Ct.  214;  Rambler  v. 
Tryon,  7  Serg.  &  R.  90  ;  Bricker  v. 
Lightner,  40  Penn.  St.  199  ;  Gibson  i'. 
Gibson,  9  Yerg.  329  ;  Dorsey  v.  War- 
field,  7  Md.  65 ;  Doe  v.  Reagan,  5 
Blackf.  217 ;  Potts  v.  House,  6  Ga. 
324;  Dicker  v.  Johnson,  7  Ga.  484; 
Walker  v.  Walker,  14  Ga.  242 ;  John- 
son V.  State,  17  Ala.  618  ;  Farrell  v. 
Brennan,  32  Mo.  328  ;  State  v.  Coleman, 
27  La.  Ann.  691. 

235 


§  262.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

in  such  cases,  are  symptoms  of  a  particular  class  the  marks  of 
an  unsound  mind  ?"  And  this  is  admissible.^  On  the  other 
hand,  it  is  inadmissible  to  ask  a  non-expert  such  questions,  for 
the  reason  that  he  has  no  experience  in  treating  such  diseases 
as  a  class.^  And  the  prevalent  opinion  is  that  even  an  expert, 
while  he  may  be  asked  as  to  a  hypothetical  case,  cannot  be  asked 
his  opinion  on  the  facts  put  in  evidence  in  a  particular  case,  as  this 
would  put  him  in  the  place  of  the  jury,  and  commit  to  him  the 
determining  not  merely  the  meaning,  but  the  credibility  of  the 
testimony  .3 

Sub   rib  ^  2Q0.  Subscribing  witnesses  to  wills  may,  even  on 

ing  wituess  the  strictest  rule,  be  always  permitted  to  answer  as  to 
as  to  sanity   the  testator's  sanity.^ 

Non-  §    261.    It   is   conceded,  even   by   the   courts   most 

missibie  as    rigorous   in  limiting  such  testimony,  that  any  witness, 

ne^s""^^'^"   layman  or  expert,  unskilled  or  skilled,   may  testify  as 

to  the  fact  of  intoxication.^ 

§  262.  Experts  in  mental  science,  and  in  the  treatment  of  the 


1  Dexter  v.  Hall,  15  Wall.  9  ;  U.  S. 
V.  McGlue,  1  Curtis,  1 ;  Sills  v.  Brown, 
9  C.  &  P.  604  ;  Spear  v.  Richardson,  37 
N.  H.  23  ;  Fairchild  v.  Bascomb,  35  Vt. 
398  ;  Hathaway  v.  Ins.  Co.,  48  Vt.  335  ; 
Com.  V.  Rogers,  7  Met.  500  ;  Com.  v. 
Rich,  14  Gray,  335  ;  Hoard  v.  Peck,  56 
Barb.  502  ;  Harnett  v.  Garvey,  66  N.  Y. 
641 ;  Negro  Jerry  v.  Townshend,  9  Md. 
145  ;  Choice  v.  State,  31  Ga.  424  ;  Davis 
V.  State,  35  Ind.  496  ;  Bishop  v.  Spin- 
ing,  38  Ind.  143  ;  Wright  v.  Hardy,  22 
Wis.  348  ;  Wilkinson  v.  Moseley,  30 
Ala.  562  ;  and  cases  cited  in  Wli.  on 
Ev.  §  452. 

2  Com.  V.  Rich,  14  Gray,  335  ;  State 
V.  Klinger,  46  Mo.  228  ;  Caleb  v.  State, 
39  Miss.  722  ;  Russell  v.  State,  53  Miss. 
368. 

3  R.  V.  Higginson,  1  C.  &  K.  129  ; 
Sills  V.  Brown,  9  C.  &  P.  604 ;  R.  v. 
Frances,  4  Cox  C.  C.  57  ;  R.  v.  Rich- 
ards, 1  F.  &  F.  87 ;  Dexter  v.  Hall,  15 

236 


Wall.  9  ;  Willey  v.  Portsmouth,  35  N. 
H.  303  ;  Perkins  v.  R.  R.,  44  N.  H. 
223  ;  Woodbury  v.  Obear,  7  Gray,  467 ; 
Miller  v.  Smith,  112  Mass.  475  ;  Draper 
V.  Saxton,  118  Mass.  431  ;  Brill  v. 
Flagler,  23  Wend.  354;  People  v. 
McCann,  3  Parker  C.  R.  272  ;  Reynolds 
V.  Robinson,  64  N.  Y.  589  ;  State  v. 
Powell,  2  Halst.  244  ;  Kempsey  v.  Mc- 
Ginnis,  21  Mich.  123  ;  Bishop  v.  Spin- 
ing,  38  Ind.  143 ;  Phillips  v.  Starr,  26 
Iowa,  349  ;  Butler  v.  Ins.  Co.,  45  Iowa, 
93  ;  State  v.  Medlicott,  9  Kans.  257  ; 
Choice  V.  State,  31  Ga.  424.  But  see 
Getchell  v.  Hill,  21  Minn.  464. 

1  Chase  v.  Lincoln,  3  Mass.  236 ; 
Poole  V,  Richardson,  ib.  330 ;  Buck- 
minster  V.  Perry,  4  Mass.  593  ;  Need- 
ham  V.  Ide,  5  Pick.  510  ;  Castner  v. 
Sliker,  33  N.  J.  L.  95,  507. 

5  State  V.  Pike,  49  N.  H.  399  ;  Gaha- 
gan  V.  R.  R.,  1  Allen,  187 ;  People  v. 
Eastwood,  14  N.  Y.  562. 


EVIDENCE. 


[§  268. 


insane,  as  well  as  in  all  other  sciences  and  professions,    Experts  ad- 

TTl  1 P fii  1)1  ft    3iS 

are  admissible  to  testify  as  specialists  in  their  particular   specialists. 
line.^ 

&  263.  "When  required  to  give  time  and  labor  to  the    Areenti- 
,      .  ,     .  „  .  .   ,      ,       1  ...      tied  to  spe- 

elucidation  of  questions  on  trial,  the   better  opinion  is    ciai  fees. 

that  experts  should  be  "entitled  to  special  fees.^ 

§  264.  An  expert  cannot  be  examined  as  to  a  matter   Cannot  be 

„  111  •  1  •   1         •  !•  examined 

01  common  knowledge  concerning  which  a  juror  may  lorm  as  to  matter 

an  independent  opinion,  nor  as  to  a  matter  of  mere  men-  ^^o^ie^g" 

tal  or  moral  philosophy  or  of  domestic  jurisprudence.^ 

§  265.  Whether  a  matter  belongs  distinctively  to  an  ^^^^g^'^^g. 

expert  is  for  the  determination  of  the  court  trying  the    longs  to  ex- 
pert is  for 
case.'* 

§  266.  An  expert  may  be  examined  as  to  scientific 
authorities  for  the  purpose  either  of  sustaining  or  assail- 
ing his  conclusions.^ 

§  267.  An  expert  may  be  examined  as  to  a  hypothet- 
ical case  f  and  it  has  also  been  held  that,  when  the  facts 


court. 
May  be 
examined 
as  to  scien- 
tific author- 
ities. 


May  be  ex- 
amined as 

are  undisputed,  he  may  be  asked  as  to  their  bearing  on   theticai 
sanity.     But  he  cannot,  in  any  case  where  the  meaning   ^ot'^as'to 
and  bearing  of  the  facts  are  disputed,  be  examined  as  to   disputed 
his  opinion  as  to  such  facts.^ 

§  268.  Here  emerges  a  new  difficulty  in  this  vexed  issue. 
"  Experts"  are  to  have  a  certain  degree  of  credit  at- 
tached to  their  testimony,  but  who  are  "  experts  ?" 
Forensic-psychological  medicine  is  the  specialty  ;  and  an 
expert  in  this  specialty  must  be  skilled  in  three  depart- 
ments of  science :  (1),  law,  sufficient  to  determine  what 
is  the  "responsibility"  which  is  to  be  the  object  of  the  contested 
capacity  ;  (2)  psychology,  so  as  to  be  able  to  speak  analytically  as 
to  the  properties  of  the  human  mind  ;  (3)  medicine,  so  far  as  con- 
cerns the  treatment  of  the  insane,  so  as  to  speak  inductively  on  the 
same  subject.  If  either  of  these  factors  is  wanting,  a  witness  can- 
not be  technically  an  expert.     But  while,  on  strict  principles,  these 


Difficulty 
in  deter- 
mining 
who  are  ex- 
perts as  to 
insanity. 


>  Wh.  on  Ev.  §  434. 
2  Ibid.  §  380. 
8  Ibid.  §  436. 
*  Ibid.  §  437. 


6  Ibid.  §  438. 
6  Ibid.  §  452. 
?  Ibid.  ;  supra,  §  259. 

237 


§  270.]      MENTAL   UNSOUNDNESS   IN   ITS  LEGAL   RELATIONS. 

tests  should  be  applied,  the  courts  have  relaxed  first  one  and  then 
another  limitation  until  the  prevalent  opinion  now  is  that  all  per- 
sons who  have  made  mental  disease  a  practical  study,  or  who  have 
been  employed  in  the  professional  care  of  the  insane,  are  to  be 
regarded  as  experts  in  insanity. 

§  269.  It  has  been  frequently  said,  as  will  hereafter  be  seen, 
J,  ^  that  neither  "  quacks"  nor  mere  speculative  theorists  are 
cienttestof  admissible  as  experts.     But  who  are  "  quacks  ?"     Are 

capacity.  .  .  ^         •  t 

practitioners  oi  new,  and  what  may  at  the  time  be  pro- 
fessionally viewed  as  heretical,  schools,  "  quacks  ?"  This  would 
have  disqualified  both  Willis  and  Esquirol,  each  of  whom  was  for  a 
time  viewed  as  a  quack  by  the  body  of  conservative  practitioners. 
Is  the  adherer  of  a  system  which,  though  venerable  and  supported 
by  high  past  authority,  is  now  regarded  as  exploded  ?  Would  a 
homoeopathic  physician  be  an  expert  in  materia  medicaf  Would 
one  of  Bishop  Berkeley's  disciples  be  an  expert  as  to  the  value  of 
tar-water  ?  Is  even  a  psychological  physician  of  eminence  an  expert 
as  to  matters  exclusively  speculative  or  ethical  The  latter  question 
was  properly  negatived  in  1869,  in  the  court  of  appeals  of  Kentucky, 
by  Chief  Justice  Williams,  who  said,  that  "the  opinions  of  experts, 
not  founded  on  science,  but  on  a  mere  theory  of  morals  or  ethics? 
whether  given  by  professional  or  unprofessional  men,  are  wholly 
inadmissible  as  evidence.  Hence  the  opinion  of  even  physicians, 
that  no  sane  man  in  a  Christian  country  would  commit  suicide,  not 
being  founded  on  the  science  or  phenomena  of  the  mind,  but  rather 
a  theory  of  morals,  religion,  and  future  responsibility,  is  not  evi- 
dence."^    And  such  is  undoubtedly  the  law. 

§  270.  The  respect  which  was  once  paid  to  the  testimony  of  ex- 
perts, and  which  was  recorded  in  former  editions  of  this 
to%e"ciose-   work,  has  of  late  years  greatly  diminished.^ 
^^ize^™*^'  Thus  Chief  Justice  Chapman,  of  Massachusetts,  on  the 

trial  of  Andrews,  in  1868, ^  said,  "  I  think  the  opinions 
of  experts  are  not  so  highly  regarded  now  as  they  formerly  were, 
for,  while  they  afford  great  aid  in  determining  facts,  it  often  hap- 
pens that  experts  can  be  found  to  testify  to  any  theory,  however 

»  Ins.  Co.  V.  Graves,  6  Bush  (Ky.),         «  See  Wh.  on  Ev.  §  722. 
290.  3  Pamph.  R.  p.  356. 

238 


EVIDENCE.  [§  270. 

absurd."  And  Judge  Davis,  of  the  supreme  court  of  Maine,'  went 
so  far  as  to  say,  "  If  there  is  any  kind  of  testimony  that  is  not 
only  of  no  value,  but  even  worse  than  that,  it  is,  in  my  judgment, 
that  of  medical  experts.  They  may  be  able  to  state  the  diagnosis 
of  a  disease  more  learnedly  ;  but  upon  the  question,  whether  it  had, 
at  a  given  time,  reached  such  a  stage  that  the  subject  of  it  was 
incapable  of  making  a  contract,  or  irresponsible  for  his  acts,  the 
opinion  of  his  neighbors,  if  men  of  good  common  sense,  would  be 
worth  more  than  that  of  all  the  experts  in  the  country."  And 
Judge  Redfield,  in  commenting  on  this  case,  says,  that  there  seems 
to  be  "  but  one  opinion  as  to  the  fact  that  this  kind  of  testimony  is 
extremely  unsatisfactory.  ,  .  .  We  are  more  and  more  con- 
firmed in  an  opinion  that  the  difficulty  comes  largely  from  the  man- 
ner in  which  the  witnesses  are  selected.  ...  If  the  state,  or 
the  courts,  do  not  esteem  the  matter  of  sufficient  importance  to  jus- 
tify the  appointment  of  public  officers,  .  .  .  it  is  certain  the 
parties  must  employ  their  OAvn  agents  to  do  it ;  and  it  is  perhaps 
almost  equally  certain,  that  if  it  be  done  in  this  mode  it  will  pro- 
duce two  trained  bands  of  witnesses,  in  battle  array  against  each 
other,  since  neither  party  is  bound  to  produce,  or  will  be  likely  to 
produce,  those  as  their  witnesses  who  will  not  confirm  their  views." 

So  also  an  eminent  federal  judge.  Judge  Woodruif,  said  to  a  jury 
in  1871,  that,  "  where  the  opinion  (of  experts)  is  speculative, 
theoretical,  and  states  only  the  belief  of  the  witness,  while  yet  some 
other  opinion  is  consistent  with  the  facts  stated,  it  is  entitled  to  but 
little  weight  in  the  minds  of  the  jury.  Testimony  of  experts  of  this 
latter  description,  and  especially  where  the  speculative  and  theoret- 
ical character  of  the  testimony  is  illustrated  by  opinions  of  experts 
on  both  sides  of  the  question,  is  justly  the  subject  of  remark,  and 
has  been  often  condemned  by  judges  as  of  slight  value.  And  like 
observations  apply  to  a  greater  or  less  degree  to  the  opinions  of 
witnesses  who  are  employed  for  a  purpose  and  paid  for  their  ser- 
vices ;  who  are  brought  to  testify  as  witnesses  for  their  employers. 

.  .  This  condemnation  is  not  always  applicable ;  often  it 
would  be  unjust.  Where  an  expert  of  integrity  and  skill  states 
conclusions  which  are  the  necessary  or  even  the  usual  results  of 

'  Neal's  case,  cited  1  Redfield  on  Wills,  *101,  and  see  furtlier  cases  cited  Wh.. 
on  Ev.  §  454. 

239 


§  273.]       MENTAL    UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

the  facts  upon  which  his  opinion  is  based,  the  evidence  should  not 
be  lightly  esteemed  or  hastily  discredited."^ 

§271.  Or,  to  put  the  point  in  other  language  :  There  is  no  theory 
Difficulty  ^^  absurd  but  that  it  has  found  some  philosopher  by 
induced  by    whom  it  is  maintained.    "  Nihil  tam  absurde  dici  potest, 

speculative  .  it  •  n 

tendencies  quod  non  dicatur  ab  aliquo  philosophorum.  ^  Hence 
exper  s.  ^Yiere  is  no  theory  so  absurd  that,  on  a  trial,  some 
unique  philosopher  may  not  be  secured  to  testify  that  he  believes 
it.  Of  this  we  have  had  a  number  of  illustrations  in  the  preceding 
pages.^  Experts  have  been  found  to  testify  that  no  sane  person 
commits  suicide,  and  that  all  suicides  are  insane  ;  that  all  men  are 
more  or  less  insane  ;  that  certain  propensities  or  faculties  can  be- 
come insane  by  themselves,  and  when  insane  are  irresistible  ;  that 
very  bad  people,  and  especially  old  convicts,  are,  as  a  rule,  insane  ; 
and  that  certain  signs,  which  signs  the  great  body  of  the  profession 
regarded  as  indifferent,  are  sure  marks  that  insanity  has  set  in. 
There  is,  in  fact,  no  psychological  defence,  no  matter  how  whimsical, 
that  has  not  been  based  on  the  speculations  of  isolated  experts,  and 
that  has  not  found  some  isolated  experts  to  swear  to  it  on  trial. 
§  272.  Another  difficulty  is  that  experts  are  now  employed  sys- 
tematically and  specially  feed  by  the  parties  calling 
the  fact  them.  They  are  as  much  counsel  in  their  specialty  as 
i^^L^o^'o       the  solicitors  and  barristers  in  a  case  are  counsel  in  mat- 

perts  are 

feed  by  .  ters  of  law.  When  thus  employed,  they  lose  all  judicial 
authority.  It  is  impossible  but  that  they  must  take  a 
strong  bias  from  the  party  calling  them  ;  and  even  were  this  not 
the  case,  the  policy  of  the  law  forbids  that  a  person  receiving  the 
special  fee  from  a  party  should  have  any  other  authority  in  a  case 
beyond  that  to  which  he  is  entitled  on  the  principles  of  sound  logic. 
If  there  is  reason  to  believe  what  he  says,  he  should  be  believed. 
But  he  should  not  be  believed  because  he  is  an  expert.* 

§  273.  That  the  sober  practical  thought  of  the  great  body  of 
And  so  be  alienists  rejects  such  extravagances  cannot  be  ques- 
cause  there   tioned ;  but  how  are  the  views  of  this  great  body  to  be 

IS  no  ex-  '  o  ti 

pert  appei-    ascertained  ?    Of  course  it  is  easy  for  a  party  to  summon 

1q+p  court  A         •' 

the  single  expert  who  may  happen  to  have  propounded 

>  Woodruff,  J.,  Gay  v.   Ins.    Co.,   9         3  See   supra,    §§    190-195.      On    this 

Blatch.  142 ;  2  Big.  Ins.  Rep.  14.  topic  see  more  fully  Wh,  on  Ev.  §  454. 

2  Cicero,  De  Divinatione,  ii,  58.  *  Wh.  on  Ev.  §§454,  722.  Supra,  §  33. 

240 


EVIDENCE.  [§  273. 

the  bizarre  theory  which  is  necessary  to  sustain  such  party's  case. 
But  how  is  such  expert  to  be  contradicted  ?  How  is  it  to  be  shown 
that  the  whole  sense  of  his  profession  is  against  him,  and  that  he  is 
himself  laboring  under  one  of  those  delusions  to  which,  as  has  been 
seen,  men  of  science  are  as  liable  as  are  men  of  other  professions 
or  modes  of  training  ?  It  is  impossible  to  summon  the  whole  pro- 
fession to  prove  this.  It  is  inadmissible  for  one  to  testify  as  to  the 
opinions  of  others.  There  is  no  supreme  court  among  experts  by 
which  conflicting  views  can  be  reconciled  and  an  authoritative  judg- 
ment pronounced.  There  is  no  power  by  which  the  testifying 
expert,  who  assumes  a  semi-judicial  post,  can  be  made  to  accept 
judicial  responsibilities ;  can  be  made  to  hear  counsel  to  instruct 
him  on  both  sides  of  each  contested  point  of  psychology ;  can  be 
made  to  feel  that  he  is  bound  to  testify  to  the  views  of  his  whole 
profession.  Hence,  when  the  trial  comes  on,  the  expert  who  is 
selected  because  he  holds  views  which  the  great  body  of  his  pro- 
fession rejects,  testifies  often  alone,  or  with  but  slight  and  inade- 
quate correction.^  From  this  have  arisen  those  outrages  on  public 
justice  which  eminent  medical  authorities  have  been  among  the 
first  to  deplore. 2  Hence  it  is  that  high  medical  authority  has  called 
for  the  abandonment  of  the  present  system  of  "  voluntary"  experts, 
and  the  establishment  of  a  government  board,  as  is  the  case  in  Ger- 
many .^     Hence,  also,  after  one  conspicuous  instance  of  failure  of 

'  See  supra,  §§  190-195.  verfahren,"  in  "  Arcliiv  fiir  Preussis- 

2  See  Lettsomian    Lectures    on    In-  ches   Strafrecht,"    Berlin,    1853.     See 

sanity,    by    Forbes    Winslow,    M.D.,  also  Regnault's  elaborate  disquisition, 

D.C.L.,  late  President  of  the  Medical  "  Du  degre  de  competence  des  Medecins 

Society  of  London,  etc.     London  :  John  dans  les  questions  judicaires  relatives 

Churchill,     New     Burlington     Street,  atix  alienations  mentales,"  etc.,  Paris, 

Medical   Testimony   and   Evidence   in  1828. 

Cases  of  Lunacy,  being  the  Croonian  ^  d^^    Reese,    Professor    of    Medical 

Lectures   delivered   before   the   Royal  Jurisprudence   and  Toxicology  in  the 

College  of  Physicians,  in  1853,  with  an  University  of  Pennsylvania,  in  an  ar- 

essay    on    the    conditions    of   mental  tide   in   the   American  Journal  of  the 

soundness,   by   Thomas   Mayo,    M.D.,  Medical  Sciences  for  April,  1872,  ani- 

F.R.S.     London:   John  W.  Parker  &  madverts  with  great  justice  "on  the 

Son,   West   Strand,    1854.     Marc,  Die  impropriety  of  conducting  a  post-mor- 

Geisteskrankheiten,  in  Beziehung  auf  tem  examination,  when  there  is  a  sus- 

die  Rechtspflege,  i.  p.  8.     And  see  also  picion  of  death  by  poison,  and  where 

particularly  Mittermaier's  very  inter-  the  reputation  and  even  the  life  of  a 

esting  essay,  "  Die  Stellung  und  Wirk-  fellow  being  is  involved,  without  the 

samkeit  der  Sachverstandigen  in  Straf-  presence  and  oversight  of  the  legally 

VOL.  I.— 16  241 


§  274.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 


justice  from  this  cause — that  in  the  case  of  Mr.  Windham,  in  1866 — 

the  feeling  was  so  strong  of  the  mischief  done  by  crowding  cases 

with  incompetent  or  extravagant  experts  to  the  exclusion  of  the 

sober  and  authoritative,  that  the  lord  chancellor  proposed  in  the 

house  of  lords,  though  without  pressing  the  proposition  to  a  vote, 

to  exclude  such  testimony  altogether  in  commissions  of  lunacy, 

except  so  far  as  it  is  based  on  facts  within  the  personal  knowledge 

of  the  witness. 

§  274.  In  many  parts  of  Germany  the  practice  obtains  of  requir- 

Experts        ^"^  ^^^  medical  faculty  of  each  judicial  district  to  ap- 

shouid  be      point  a  Special  committee  to  whom  questions  of  this  char- 
assessors.  .  .       -^ . 

acter  are  referred.    This  committee  is  examined  directly 

by  the  court,  and  gives  testimony  somewhat  in  the  same  way,  and 

with  the  same  eifect,  as  would  a  common  law  court  when  reporting 

its  judgment  in  a  feigned  issue  from  chancery,  or  as  would  assessors 


constituted  aiitliority — the  coroner.  It 
must  be  evident,"  he  continues,  "to 
every  observer,  that  the  whole  exami- 
nation, in  the  present  case  (that  of 
Mrs.  E.  G.  Wharton)  was  in  the  hands 
of  those  who  were  not  entirely  devoid 
of  prejudice.  The  first  autopsy  is  made 
by  Drs.  Williams,  Miles,  and  Chew, 
within  twenty  hours  after  death — the 
strong  suspicion  of  poison  influencing 
the  minds  of  these  gentlemen.  Two 
weeks  later,  the  body  is  exhumed  and 
again  examined,  exclusively  by  these 
same  persons.  There  is  no  represen- 
tative or  friend  of  the  accused  party 
invited  to  be  present.  Surely,  this  was 
not  in  accordance  with  justice  or  pro- 
priety. Were  it  not  that  the  profes- 
sional and  social  character  of  the  parties 
concerned  places  them  above  suspicion, 
there  might  certainly  be  very  grave 
reason  for  taking  exception  to  such  ex 
parte  proceedings ;  for  there  might  be 
just  cause  for  doubt  in  regard  to  the 
absolute  identity  of  the  material  ope- 
rated upon.  But  still  more  glaring 
was  the  departure  from  propriety, 
when  the  body  was  the  second  time  dis- 
interred,   and   that,    too,    during    the 

242 


actual  progress  of  the  trial.  .  .  . 
Certainly,  none  of  the  counsel  for  the 
defence  was  aware  of  it,  until  Dr.  Wil- 
liams one  morning  (during  the  trial) 
gave  the  unexpected  detail  to  the 
court,  and  informed  them  that  the  new 
chemist,  to  whom  the  analysis  of  the 
viscera  had  been  committed,  was  now 
ready  to  give  a  partial  exhibition  of 
his  results. 

"  Now  it  seems  to  us  that  this  pro- 
cedure on  the  part  of  the  State  was 
unfair  to  the  accused,  to  her  counsel, 
and  to  the  cause  of  juctice.  We  deem 
it  contrary  to  all  precedents  in  criminal 
jurisprudence,  to  take  such  an  imfair 
advantage  of  the  accused.  MHiy  icas 
not  her  counsel  informed  of  this  intention 
of  the  prosecution,  so  that  at  least  one  of 
the  experts  for  the  defence  might  have  been 
present  at  the  exhumation  of  the  body  and 
the  subsequent  analysis,  and  thus  give  at 
least  the  appearance  of  fairness  to  the  pro- 
cedure ?  We  venture  to  assert,  without 
fear  of  contradiction,  that  such  an  ex 
parte  proceeding  would  never  have  been 
permitted  in  any  country  in  Europe ; 
and  will  never  again  be  allowed,  it  is 
hoped,  in  our  own  country." 


EVIDENCE.  ^  [§  275. 

called  upon  under  the  canon  law  to  state,  in  proceedings  under  the 
law,  what  is  the  secular  law  of  the  land  on  the  pending  question. 
In  the  United  States,  as  in  England,  the  practice  has  grown  up,  as 
has  been  seen,  of  permitting  each  party  to  call  such  experts  as  he 
may  think  most  likely  to  further  his  views.  This  practice  neces- 
sarily produces  collision  of  opinion,  which  greatly  embarrasses  court 
and  jury,  and  has,  as  has  been  stated,  more  than  any  other 
cause,  tended  to  Aveaken  what  should  be  in  such  cases  the  due  in- 
fluence of  medical  science.  Take,  as  an  illustration,  the  question 
of  the  existence  of  "  moral  insanity"  as  a  distinct  and  substantive 
defence,  supposed  to  exist  independently  of  any  lesion  of  the  mind. 
The  existence  of  such  a  phase  of  insanity  is  affirmed,  as  is  seen,  by 
one  school  of  experts,  and  is  denied  by  another  school.  The  defen- 
dant calls,  in  a  case  where  the  defence  of  moral  insanity  is  set  up, 
experts  of  the  first  school.  The  prosecutor,  in  reply,  calls  experts  of 
the  second  school.  The  two  classes  of  experts  flatly  contradict  each 
other  as  to  the  very  possibility  of  the  existence  of  such  a  defence. 
The  judge,  under  such  circumstances,  puts  the  whole  testimony 
aside,  as  relating  to  a  question  as  to  which  medical  science  has  no 
distinct  rendition.  The  jury  either  follow  the  court,  or  are  governed 
by  some  side  issue.  Of  course,  under  our  existing  system,  the  con- 
flict, as  such,  cannot  be  avoided.  But  it  would  be  greatly  lessened 
if  the  prosecution,  when  its  proceedings  are  penal  and  conducted  by 
the  state,  should,  when  the  plea  of  insanity  is  interposed,  call  emi- 
nent and  experienced  psychological  physicians,  not  as  representa- 
tives of  particular  schools,  but  as  assessors,  to  state  what,  in  the 
pending  issue,  is  the  general  view  of  medical  science  as  applied  to 
the  defendant's  case.  In  those  states  where  the  plea  of  insanity 
has  to  be  determined  as  a  distinct  preliminary  issue,  this  can  be 
readily  done  at  the  outset.  When,  however,  the  practice  is  to  per- 
mit the  defendant  to  introduce  insanity  under  the  general  plea  of 
not  guilty,  then  the  prosecution  may  take  this  course  in  rebuttal. 
And  in  all  cases,  experts,  by  whomsoever  called,  should  recollect 
that  they  are  required,  when  asked  as  to  the  existence  of  any  par- 
ticular disease  or  symptom,  to  state  not  simply  their  own  personal 
view,  but  the  general  sense  of  the  profession  to  which  they  belong. 
§  275.  It  has  already  been  stated  that  the  opinions  of  experts, 
on  conclusions  of  law,  are  inadmissible  ;  and  it  has  been  further  no- 
ticed that  experts  are  not  entitled  to  testify  as  such  to  matters  not 

243 


§  276.]      MENTAL   UNSOUNDNESS   IN   ITS   LEGAL   RELATIONS. 

Their  testi-  distinctively  within  the  range  of  their  specialty.^  In  this 
should  not  view,  high  medical  authorities  concur.  Thus,  Dr.  Liman, 
be  ^specula-   j^  j^-^  ^^-^-^^  ^^  g^g^^^  (Berlin,  1871),  thus  speaks: 

"  The  history  of  art^  is  rich  in  individual  eccentrici- 
ties ;  and  the  heroes  of  art  exhibit  in  the  chronology  of  their  works 
transitions  in  which  it  is  hard  to  determine  the  point  where  the 
luxurious  liberty  of  genius  passed  into  fantastic  eccentricity."  He 
mentions  the  case  of  Beethoven,  whose  later  works  it  puzzles  the 
most  enthusiastic  disciple  to  reconcile  with  sane  art ;  and  the  same 
observation  applies  to  Turner,  some  of  whose  later  paintings  may  be 
assigned,  according  to  the  stand-point  of  the  critic,  either  to  great 
gifts  demoralized  by  insane  self-will,  or  to  the  same  great  gifts 
elevated  by  genius  to  the  last  stage  of  transfiguration.  To 
similar  mental  tendencies  may  be  traced,  according  to  Dr.  Liman,  a 
large  part  of  the  speculative  aberrations  of  those  who  have  theor- 
ized on  the  operations  of  the  mind.  No  theorist,  for  instance,  was 
more  pure  or  honest  than  Bishop  Berkeley,  yet  Bishop  Berkeley 
declared  it  to  be  indisputably  proved  that  all  objective  life  is  a 
dream.  So  we  may  rank  the  hypothesis  of  one  class  of  psycholo- 
gical physicians  that  every  body  is  more  or  less  insane,  and  that  of 
another,  that  all  insane  persons  are  responsible  ;  and  so,  also,  the 
various  extravagant  theories  of  monomania  to  be  hereafter  noticed. 
After  all,  it  should  never  be  forgotten  that  an  abstract  opinion  as 
to  insanity  is  of  little  value.  Insanity,  it  is  admitted  on  all  sides, 
is  incapable  of  definition  ;  and  to  declare  a  person  insane,  therefore, 
is  to  attach  to  him  a  predicate  which  cannot  be  defined.  So,  also, 
it  must  be  remembered  that  there  are  some  admitted  cases  of  in- 
sanity (e.  g.  "  partial"  insanity,  or  collateral  monomania)  which 
destroy  neither  testamentary  capacity  nor  criminal  responsibility, 
when  the  act  is  not  the  product  of  the  particular  insane  delusion. 
Hence  the  real  issue  is,  not  was  the  party  insane,  but  what  was  his 
condition  of  mind  as  to  a  particular  act. 

§  276.  Special  and  ex  parte  interviews,  it  must  be  remembered, 

are  very  unsatisfactory  and  inadequate  tests.  Few  per- 
sons sons  with  capacity  enough  to  commit  crime  are  wanting 
thoroueh      ^'^  capacity  to  feign  insanity  for  short  periods  upon  due 

notice  given.     Hence  it  is  that  experimental  visits  by 

»  Wh.  on  Ev.  §§  440,  505.  «  Page  394. 

244 


EVIDENCE.  [§  278. 

experts  to  prisoners  are  so  unsatisfactory  ;  and  hence,  also,  we  may 
understand  the  slight  influence  on  court  and  jury  exercised  in  the 
trials  of  Watson  and  Edmunds  in  January,  1872,  by  the  testimony 
of  eminent  medical  gentlemen  that  they  had  had  several  inter- 
views with  the  prisoners,  and  that  the  prisoners  did  not  seem  to  have 
been  fully  conscious  of  the  nature  and  moral  character  of  their 
oflence.^  It  would  be  strange  if  intelligent  persons,  such  as  these 
were,  advised  by  able  counsel,  should  have  been  ignorant,  that,  if 
they  should  establish  an  unconsciousness  on  their  part  as  to  the 
moral  nature  of  their  offence,  they  would  make  out  a  legal  defence  ; 
and  it  would  be  still  stranger  if  a  man  whose  life  is  at  stake  should 
not  at  once  seize  upon  so  simple  a  mode  of  escape.  Prison  inter- 
views, in  fact,  are  peculiarly  imperfect  tests :  jirst^  because  there 
is  there  little  possibility  of  observing  the  prisoner  in  unrestrained 
intercourse  with  others ;  and,  secondly,  because  the  observer  can- 
not, as  he  could  in  an  asylum  or  in  places  where  his  authority 
is  supreme,  exercise  any  such  control  over  the  parties  as  will 
enable  him  to  apply  adequate  tests.  Hence  it  is  that  an  expert 
should  hesitate  long  before  he  expresses  on  oath  an  opinion  based 
on  such  interviews.^ 

§  277.  Nor  is  the  danger  of  deception  solely  on  one  side.     Sane 
men  may  skilfully  feign  lunacy,  but  sometimes  lunatics 
have  been  equally  skilful  in  feigning  themselves  to  be    tws^s  pe-*^^ 
sane.     Cases  have  not  been  rare  in  which  lunatics,  while    cuiiariy 

requisite. 

hugging  as  they  would  an  idol  their  insane  delusions  to 
their  secret  heart,  have  baffled  the  most  experienced  examiners  for 
hours.  The  lunatic  who,  in  a  well-known  case,  succeeded,  by  sane 
answers,  in  defying  even  Erskine's  consummate  ability,  would  no 
doubt,  had  the  humor  seized  him,  been  equally  successful  in  pre- 
venting examining  physicians  from  discovering  his  true  state  in  a 
prison  interview. 

§  278.  But  eminently  are  caution  and  thorough  acquaintance 
with  the  patient's  antecedents  necessary  when  the  ques-   p  .    , . 
tion  of  motive  is  involved.     Motivelessness,  as  will  here-   tory  of 
after  be  seen,'  is  often  a  prime  characteristic  of  an  insane    should  be 
act ;  and  psychological  physicians  have  been  accustomed, 

'  See  supra,  §§  117-120.  Infra,  §  399. 

2  See,  as  to  feigned  insanity,  infra, 
§§  443-460. 

245 


understood 


§  279.]      MENTAL   UNSOUNDNESS   IN  ITS   LEGAL   RELATIONS. 

with  great  propriety,  to  give  the  motivelessness  of  an  act  as  one  of 
the  chief  reasons  for  the  insanity  of  an  actor.  But  who,  without 
thorough  knowledge  of  the  human  heart,  and  without  a  specific  and 
accurate  acquaintance  with  the  patient's  character  and  antecedents, 
can  declare  any  one  of  his  acts  motiveless  ?  What  may  be  a 
powerful  motive  to  one  person,  may  be  no  motive  at  all  to  another. 
Jealousy,  for  instance,  is  a  motive  of  tremendous  force,  yet  to  detect 
jealousy  on  the  one  side,  or  to  negative  it  on  the  other,  requires  a 
thorough  knowledge  of  the  party's  temper  and  antecedents.  The 
same  remark  applies  to  acts  done  to  Avard  off  from  self  the  conse- 
quences of  some  secret  wrong.  In  the  case  of  Christiana  Edmunds, 
for  instance,  in  Avhich  one  of  the  chief  points  of  the  defence  was  the 
motivelessness  of  the  act,  there  was  reason  to  assume  that  she  had 
indulged  in  an  illicit  attachment  to  her  family  physician  ;  that  she 
had  been  suspected  of  poisoning  his  wife  with  chocolate  ;  that  to 
divert  this  suspicion  she  caused  poison  to  be  introduced  into  the 
chocolate-drops  of  a  confectioner  in  the  same  town,  which  drops 
caused  the  death  of  a  child ;  and  that  she  endeavored,  by  anony- 
mous letters  and  other  means,  to  produce  the  impression  that  the 
confectioner  in  question  sold  poisoned  sweets.  Here  was  a  powerful, 
but  at  the  same  time  subtle,  motive  ;  a  motive  the  same  in  character 
as  that  which  impelled  Dr.  Webster  to  throw  suspicion  by  anony- 
mous letters  on  innocent  parties  of  agency  in  Dr.  Parkman's  death  ; 
but  a  motive  which,  in  Edmunds's  case,  was  so  secret  in  its  origin 
and  so  tortuous  in  its  working,  and  which  was  so  intensified  on  her 
part  by  jealousy  and  infatuated  love,  that  it  required  a  full  knowl- 
edge of  her  life  and  history  to  lay  it  bare.  No  psychological 
examiner,  therefore,  can  justly  pronounce  on  the  motivelessness  of 
an  act  without  such  explanation.  Yet  it  is  here  that  is  the  very 
gist  of  the  defence.  If  a  homicide  is  deliberately  committed  under 
the  influence  of  jealousy,  or  revenge,  or  a  desire  to  screen  self,  it 
is  in  the  eye  of  the  law  murder.  Supposing  that  there  are  at  the 
time  no  insane  delusions  ;  supposing  that  there  is  a  knowledge  that 
the  act  is  wrong;  then  neither  weakness  of  mind,  nor  infatuation  of 
passion,  constitutes  a  defence. 

III.    BOOKS. 

Scientific  ^  279.  The  prevailing  opinion  is  not  only  that  scien- 

missibie.       tific  books  (not  consisting  of  mere  calculations)  are  not 
246 


EVIDENCE.  [§  279. 

admissible  in  evidence  on  litigated  issues,  but  that  they  cannot  be 
read  by  counsel  to  the  jury  as  part  of  an  argument.^  But  an  expert 
may  be  examined  as  to  how  far  standard  works  sustain  or  conflict 
with  his  opinion. 

[The  hiatus  between  §  279  and  §  303  in  this  edition  is  intentional, 
arising  from  condensation.] 

1  Wh.  on  Ev.  §  665. 

247 


BOOK  II. 

MENTAL  UNSOUNDNESS  CONSIDERED 
PSYCHOLOGICALLY. 

CHAPTER  I. 


GENERAL  THEORIES. 


I.  Preliminary  Observations. 

The  mind  now  treated  as  a  unit,  §  305. 

Phenomena  of  mind  divided  into  three 
classes  by  Kant  and  Sir  W.  Hamil- 
ton, §  306. 

This  classification  adopted  by  Bain,  § 
307. 

These  functions  not  capable  of  distinct 
insanities,  §  308. 

So  held  by  later  psychologists,  §  309. 

Classification  of  experts  in  Paris,  1867, 
§  310. 

Dr.  Maudsley,  §  311, 

Dr.  Hammond,  §  312. 

Analysis  of  Casper  and  Liman,  §  313. 

Of  Dr.  Ray,  §  314. 

Of  Flemming,  §  315. 

Of  Ellinger,  §  316. 

Three  prominent  theories  as  to  cause 
of  insanity,  §  318. 

II.  Psychical  Theory. 

The  soul  the  origin  of  the  disease,  § 
319. 

III.  Somatic  Theory. 

Disturbance  of  the  soul  produced  by 

bodily  abnormities,  §  320. 
No  lesion  of  the  brain  due  to  insanity, 

§321. 
Insanity    does     not     always    produce 

organic  cerebral  change,  §  322. 


No  correspondence  between  exterior  of 
skull  and  sanity,  §  323. 

Contiict  on  subject  illustrated  by  apha- 
sia, §  324. 

This  said  to  be  of  physical  origin,  § 
325. 

Objections  to  this  view,  §  326. 

Materialistic  hypothesis  would  avoid 
personal  responsibility,  §  327. 

Though  it  is  claimed  not  to  affect 
future  responsibility,  §  328. 

IV.  Intermediate  Theory. 
1.  Its  basis. 

Body  and  soul  alike  the  origin  of  dis- 
ease, §  329. 

Psychological  theory  too  great  a  reac- 
tion from  the  somatic,  §  330. 

Sound  psychologists  tend  to  interme- 
diate theory,  §  331. 

This  theory  not  rejected  by  standard 
theologians,  §  332. 

The  incorporeality  of  the  soul  not  a 
canon  of  faith,  §  333. 

Mind  and  matter  united  in  our  nature, 
§334. 

And  react  upon  each  other,  §  335. 
2.  Its  effect  on  responsihilitij . 

Intermediate  theory  relieves  doctrine 
of  responsibility  of  many  difficulties, 
§  336. 

Question  of  penal  discipline,  how  deter- 
mined, §  337. 

249 


§  306.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 
I.   PRELIMINARY  OBSERVATIONS.^ 

§  305.  The  difficulties  that  have  attended  the  classification  of 
insanity  have  proceeded  from  two  causes.  The  first  is, 
now  treat-  ^^®  confusion  of  nomenclature,  the  same  terms  being  used 
edasa  to  describe,  according  to  the  stand-point  of  the  observer, 

very  distinct  phenomena.  The  second  is,  the  treatment 
of  a  symptom  as  if  it  were  a  distinct,  substantive  disease;  and  the 
consequent  resolution  of  the  mind  into  a  series  of  distinct,  inde- 
pendent factors,  one  of  which  may  be  assumed  to  be  insane,  while 
the  others  remain  sane.  It  is  the  latter  tendency,  in  fact,  that  has, 
more  than  all  other  causes,  tended  to  lower  the  authority  of  psy- 
chology with  the  courts. 

But  the  weight  of  present  psychological  opinion  is  to  discard  this 
process  of  disintegration,  and  to  treat  the  mind  as  a  unit,  which, 
when  diseased,  however  distinctively  the  disease  may  manifest 
itself,  is  diseased  as  a  whole.  This,  in  fact,  is  a  necessary  sequence 
of  the  view  of  the  mind  as  an  entirety  which  modern  psychologists 
of  all  schools  unite  in  maintaining.  Assuming  "mind"  and  "soul" 
to  have  in  this  view  the  same  sense,  and  to  represent  the  individual 
ego^  we  must  view  the  various  functions  or  factors — e.  g.  memory, 
perception,  moral  sense,  will — not  as  so  many  distinct  minds,  but 
as  parts  or  manifestations  of  one  mind. 

§  306.  Sir  William  Hamilton^  thus  reviews  the  literature  of  the 
Pheno-  topic  as  it  existed  at  the  time  of  the  preparation  of  his 

mind  di-  Icctures.  "  The  division  of  the  i^^t'enomena  of  the  mind 
v^ded  into     j^^^  ^.j^g  three  great  classes  of  the  cognitive  faculties, 

'  In  order  to  avoid  redundancy  of  and  Civil  Capacity,  by  Kraflft  Ebing, 
citation,  ttie  following  works  may  be  1874;  La  Folie  Hereditaire,  Dr.  Legrand 
here  referred  to  as  bearing  on  the  du  Saulle,  Paris,  1873  ;  Etude  Medico- 
general  subject  :  Responsibility  in  Legale  sur  1' Interdiction  des  Alienes, 
Mental  Disease,  by  Dr.  Henry  Mauds-  etc.,  Paris,  1880 ;  Sur  les  Testa- 
ley,  M.D.,  N.  Y.  1874;  Insanity  in  ments  ContestSs  pour  la  Cause  de 
Ancient  and  Modern  Life,  Dr.  Hack  Folie,  id.  1879  ;  Jurisprudence  M^dico- 
Tuke,  London,  1878;  Nature,  etc.,  of  Legale,  id.  1874,  all  by  the  same  au- 
Insanity,  Dr.  Davey,  Lond.  1858  ;  The  thor  ;  The  Morrisonian  Lectures  for 
Factors  of  the  Unsound  Mind,  William  1873,  by  Drs.  Skae  and  Coulston,  19 
A.  Guy,  M.D.,  F.R.S.,  Lond.  ;  Lectures  Journ.  Ment.  Sci.  355, 491 ;  20  id.  1,  200. 
on  Mental  Disease,  W.  H.  0.  Sankey,  Maschka's  Gericht.  Med.  Tubingen, 
M.D.,  Lond.  ;    Personal  Responsibility  1882. 

of  the  Insane,  James  F.  Duncan,  M.D.,  *  Lectures  on  Metaphysics,  Gould  & 

Lond.,  1877;    Criminal  Responsibility  Lincoln,  p.  129. 

250 


GENERAL    THEORIES.  [§  307. 

the  feelings  or  capacities  of  pleasure  and  pain,  and  the   classes  by 

T    1  ,  •    •      Kant  and 

exertive  or  conative  powers — 1  do  not  propose  as  origi-  sir  w. 
nal.  It  was  first  promulgated  by  Kant ;  and  the  feli-  Hamilton, 
city  of  the  distribution  was  so  apparent,  that  it  has  been  long  all 
but  universally  adopted  in  Germany  by  the  philosophers  of  every 
school ;  and,  what  is  curious,  the  only  philosopher  of  any  eminence 
by  whom  it  has  been  assailed — indeed,  the  only  philosopher  of 
any  reputation  by  whom  it  has  been,  in  that  country,  rejected 
(Krug) — is  not  an  opponent  of  Kantian  philosophy,  but  one  of 
its  most  zealous  champions.  To  the  psychologists  of  this  country 
it  is  apparently  wholly  unknown.  They  still  adhere  to  the  old 
scholastic  division  into  powers  of  the  understanding  and  powers 
of  the  will ;  or,  as  it  is  otherwise  expressed,  into  intellectual  and 
active  powers."  It  should  be  observed,  however,  that  between 
the  old  English  and  Scotch  psychologists  and  Kant,  there  is  no 
diflFerence,  so  far  as  concerns  the  question  before  us — the  unity 
and  entirety  of  the  mind.  They  differ  in  the  enumeration  of  the 
functions ;  they  agree  as  to  the  unity  of  the  substance.  Accord- 
ing to  the  older  psychologists,  the  mind  acts  in  two  main  ways ; 
according  to  Kant  and  Hamilton,  in  three.  But  by  neither  are 
these  functions  severable  from  the  mind.  If  either  is  diseased, 
the  mind  itself  is  diseased.  If  the  mind  is  not  diseased,  its  phe- 
nomena, either  jointly  or  singly,  are  not  diseased.^ 

§  307.  Mr.  Bain^  adopts  substantially  the  classification  of  Sir 
W.  Hamilton  and  Kant.     "  The  only  account  of  mind," 
he  says,  "strictly  admissible  in  scientific  psychology  con-    ciassifica- 
sists  in  specifying  three  propei-ties  or  functions — feeling,    ed*  by^Bain. 
will  or  volition,  and  thought  or  intellect — through  which 
all  our  experience,  as  well  objective  as  subjective,  is  built  up.    This 
positive  enumeration  is  what  must  stand  for  a  definition. "^    .     .     . 
^^Thoicght,  intellect,  intelligence,  or  cognition  includes  the  powers 
known  as  perception,  memory,  conception,  abstraction,  reason,  judg- 
ment, and  imagination.     It  is  analyzed,  as  will  be  seen,  into  three 

'  Reid,  indeed,  makes  four  apparent    which     thinks,    remembers,    reasons, 
groups,  but  he  is  clear  in  stating  that    ■wills." 

these  are  but  the  modes  of  action  of  the        *  Mental  and  Moral  Science,  London, 
one  mind.     "  By  the  mind  of  a  man,"     1868. 

he  says,  "we  understand  that  iu  him        ^  For  this  passage  in  full,  see  infra, 

§  533. 

251 


§  308.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOaiCALLY. 

functions,  called  discrimination,  or  consciousness  of  difference,  simi- 
larity or  consciousness  of  agreement,  and  retentiveness  or  memory. 
The  mind  can  seldom  operate  exclusively  in  any  one  of  these  three 
modes.  A  feeling  is  apt  to  be  accompanied  more  or  less  by  will  or 
thought.  When  we  are  pleased,  our  will  is  moved  for  continuance 
or  increase  of  the  pleasure  (will) ;  we  at  the  same  time  discrimi- 
nate and  identify  the  pleasure,  and  have  it  impressed  on  the  memory 
(thought.)"  In  this  view  of  the  interdependence  of  these  functions 
Sir  W.  Hamilton  emphatically  concurs. 

§  308.  If,  it  may  in  addition  be  remarked,  we  can  conceive  of 
distinct  insanities  (the  mind  as  such  remaining  sane)  of 

These  func-       .  -.     ,  .  .  to  / 

tions  not  either  of  the  three  main  functions  above  stated  ;  so  we 
distinct  in-  Hiust  concoive  of  distiuct  insanities  of  such  subordinate 
sanities.  functions  (the  mind  as  such  still  continuing  sane)  as  these 
functions  in  chief  may  comprise.  Thus  we  will,  hear  of  insane  per- 
ception, insane  memory,  insane  discrimination,  etc.,  the  mind  still 
being  supposed  to  be  unimpaired.  In  fact  there  would  be  as  many 
insanities  as  there  are  modes  of  mental  thinking,  feeling,  and 
willing.^ 

That,  however,  such  derangements  are  not  distinct,  independent 
diseases,  is  shown  by  the  fact,  hereafter  abundantly  noticed,  that 
they  occur  sometimes  alternately,  sometimes  successively,  when 
there  is  true  mental  disease.  The  disease  may  flit,  as  does  neu- 
ralgia, capriciously  from  function  to  function.  Or,  as  is  more 
usually  the  case,  it  may  begin  with  a  derangement  of  the  per- 
ceptive powers,  producing  illusions  and  hallucinations,  and  end  with 
a  torpid  prostration  of  these  powers,  producing  senile  dementia.  It 
may,  and  frequently  does,  run  through  the  stages  of  epilepsy,  of 
illusion,  of  perverted  domestic  affections,  of  mania  for  killing,  steal- 
ing, or  burning,  of  general  frenzy,  and  at  last  of  exhausted  dementia 
and  fatuity.  The  difficulty  that  exists  has  arisen  from  the  occa- 
sional treatment  by  experts  of  these  floating  symptoms  of  one 
disease  as  if  they  were  independent  diseases.  There  is  but  one 
mind  to  each  of  us,  though  this  mind  has  many  functions.  There 
can  be  but  one  disease  to  which  psychologically  the  term  insanity 
may  be  applied,  though  this  disease  minifests  itself,  even  in  one  and 
the  same  patient,  in  various  ways.^ 

'  See  infra,  §  533  et  seq,  *  See  fully  infra,  §  533  et  seq, 

252 


GENEKAL   THEORIES.  [§  310. 

§  309.  It  is  scarcely  necessary  to  pause  now  to  show  how  gene- 
rally this  view  has  been  accepted  by  recent  medical 
psychologists.^  What  MoreP  says,  "  il  n'y  a  pas  qu'une  later  psy- 
folie,  mais  diverses  vari^t^s  de  cette  affection,"  is  of  *^  °  ^^^^  ^' 
primary  importance  when  analysis  begins.  There  is  not  a  series  of 
independent  insanities ;  there  is  but  one  insanity  exhibiting  itself 
in  various  phases.  Nor  can  we  refuse  to  recognize  the  good  sense 
with  which  Dr.  Neumann^  declares  that  all  classification  of  insanity 
has  proved  to  be  artificial  and,  therefore,  unsatisfactory ;  and  that 
no  true  progress  in  this  science  can  be  credited,  until  all  classifica- 
tion is  thrown  overboard,  and  there  is  recognized  but  one  generic 
type  of  mental  disturbance  ;  and  further,  that  "  true  medical  diag- 
nosis does  not  need  these  artificial  divisions,  and  for  forensic  psy- 
chology they  have  been  pernicious.  The  tendency  of  alienists  to 
confuse  or  confound  the  judge  by  technical  nomenclature  (mono- 
mania, pyromania,  etc.),  instead  of  by  psychological  analysis  eluci- 
dating the  concrete  case,  springs  from  a  merely  artificial  systemati- 
zation,  and  judicial  j^sychology  will  for  the  first  time  assume  its 
proper  place  at  the  forum  when  it  is  emancipated  from  the  fetters 
of  the  schools."  These  views  Dr.  Liman  entirely  adopts.'*  "  Mental 
health,"  he  tells  us,  "  is  the  antithesis  of  mental  disease  ;  and  the 
sole  duty  imposed  upon  us  is  the  exposition  and  development  of  the 
concrete  individual  case  as  such,  which  is  now  so  easily  lost  sight 
of  in  the  division  of  mental  disease  into  numberless  species  and 
varieties."^ 

§  310.  Eemembering,  therefore,  that  the  different  forms  of  in- 
sanity described  by  psychologists  are  but  phases  of  one  disease, 
it  may  be  of  value  to  notice  some  of  the  modes  in  which  these 
forms  have  been  classified.^ 

One  of  the  most  authoritative  of  these  classifications  is    ciassiflca- 
that  reported  by  an  international  congress  of  psycholo-   pe,ts  in 
gical  experts  assembled  in  Paris  in  1867.^     It  is  as   Paris,  1S67. 
follows : — 

1  See  more  fully  infra,  §§  567-572.  ^  gee  more   fully  infra,   §   567,   aud 

2  Traite  de  la  Med.  Leg.,  Paris,  1866,     also  supra,  §§  163-189. 

§  iv.  s  See,  for  Dr.  Buckinel's  classifica- 

3  Lehrbucli  der  Psychiatrie,  Erlan-    tion,  19  Jourii.  Ment.  Sci.  574. 

gen,  1859,  pp.  167-237.  ''  Hammond,    Diseases    of    Nervous 

«  Liman's  Casper,  1871,  p.  550.  System,  N.  Y.,  1871,  p.  337. 

253 


§  311.]        MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

I.  Simple  insanity,  embracing  mania,  melancholia,  and  monomania  (thus 

negativing  the  claims  of  monomania  to  be  considered  a  distinct  dis- 
ease), floating  insanity,  moral  insanity  (whose  independent  existence 
is  also  thus  negatived),  and  dementia  consequent  on  the  above  types. 
II.  Epileptic  insanity. 

III.  Paralytic  insanity,  which  is  treated  as  a  distinct  disease. 

IV.  Senile  dementia. 

V.  Organic  dementia,  which  is  that  supposed  to  arise  from  some  cerebral  lesion. 
VI.  Idiocy. 
VII.  Cretinism. 

This  analysis,  however  it  may  serve  as  a  convenient  enumeration, 
is  destitute  of  logical  value.  It  applies  exclusively  neither  the 
test  of  causation,  nor  of  symptom,  nor  order  of  development,  but 
is  purely  arbitrary,  in  making,  in  the  first  head,  symptom  the  test, 
and  then  grouping  together  symptoms  the  most  incongruous  ;  rest- 
ing the  second,  third,  fourth,  and  fifth  heads  on  superinduced 
physical  causes,  and  the  sixth  and  seventh  on  causes  which  are 
congenital. 

Dr.  Mauds-       ^  3;,^^^  jy^  Maudsley'  adopts  the  following:— 

I.  Affective  or  pathetic  insanity. 

1.  Maniacal  perversion  of  the  effective  life.     Mania  sine  delirio. 

2.  Melancholic  depression  without  delusion.     Simple  melancholia. 

3.  Moral  alienation  proper.     Approaching  this,  but  not  reaching  the 

degree  of  positive  insanity,  is  the  insane  temperament. 
II.  Ideational  insanity. 

1.  General. 

a.  Mania. 

b.  Melancholia,  <  ' 

i  chronic. 

2.  Partial. 

a.  Monomania. 

b.  Melancholia. 

3.  Dementia,  I  P""^^^^' 

I  secondary. 

4.  General  paralysis. 

5.  Imbecility. 

As  to  this  analysis,  it  is  to  be  observed  simply,  that,  if  it  makes 
the  "  effective  life,"  independent  of  the  mind,  capable  of  being 
diseased  when  the  mind  is  undiseased,  it  runs  counter  both  to 
psychological  and  to  juridical  science.  If  it  does  not  make  this 
assumption,  it  is,  as  an  analysis,  insensible  and  illogical. 

'  Physiology  and  Pathology  of  the  Mind,  Loudon,  1867. 

254 


GENERAL    THEORIES.  [§  314. 

§  312.  Dr.  Hammond  gives  the  following,  which,  as  a    Dr.  Ham- 
classification  of  symptoms,  is  of  much  value  : — 

I.  Perceptional  insanity,  "characterized  by  the  tendency  to  the  formation 
of  erroneous  perception  either  from  false  impressions  of  real  objects 
(illusions)  or  from  no  external  excitation  whatever  (hallucinations)." 
II.  Intellectual  insanity,  "  characterized  by  the  existence  of  delusions."  Sub- 
sequently it  is  said,  as  explanatory  of  this  distinction,  that  "illusions 
and  hallucinations  may  exist,  and  the  individual  be  perfectly  sensible  that 
they  are  not  realities.  In  such  cases  the  intellect  is  not  involved.  But,  if  he 
accepts  his  false  perceptions  as  facts,  his  intellect  participates,  and  he  has  de- 
lusions. A  delusion  is,  therefore,  a  false  belief."  The  objection  to  this  is 
that  the  terms  illusion  and  delusion  are  used  convertibly  by  most  psycho- 
logists ;  and  that  hallucination  is  not  a  symptom  of  insanity  unless  the 
unreal  image  is  not  merely  the  creation  of  a  diseased  brain,  but  is 
believed  to  be  real. 

III.  Emotional  insanity. 

IV.  Volitional  insanity. 
V.  Mania. 

VI.  General  paralysis. 
VII.  Idiocy  and  dementia. 

§  313.  The  analysis  of  Casper  and  Liman  is  both  phi-    Analysis  of 
losophical  and  simple.     It  is  as  follows  : —  Liman. 

I.  Insanity  in  its  progress,  including  despondency,  melancholy,  excitation, 
mania,  as  among  the  various  forms  in  which  this  progress  exhibits 
itself. 

II.  Insanity  in  its  results,  including  imbecility,  dementia,  and  fatuity. 

§  314.  "The  various  diseases  included  in  the  general  term  in- 
sanity, or  mental  derangement,"  says  Dr.  Ray,  "may 
be  conveniently  arranged  under  two  divisions,  founded 
on  two  very  different  conditions  of  the  brain  ;  the  first  being  a  want 
of  its  ordinary  development,  and  the  second,  some  lesion  of  its 
structure  subsequent  to  its  development.  In  the  former  of  these 
divisions,  we  have  idiocy  and  imbecility,  differing  from  each  other 
only  in  degree.  The  various  affections  embraced  in  the  latter 
general  division  may  be  arranged  under  two  subdivisions,  mania 
and  dementia,  distinguished  by  the  contrast  they  present  in  the 
energy  and  tone  of  the  mental  manifestations.  Mania  is  charac- 
terized by  unnatural  exaltation  or  depression  of  the  faculties,  and 
may  be  confined  to  the  intellectual  or  to  the  effective  powers,  or  it 
may  involve  them  both,  and  these  powers  may  be  generally  or  par- 
tially deranged.  Dementia  depends  on  a  more  or  less  complete 
enfeeblement  of  the  faculties,  and  may  be  consecutive  to  injury  of 

255 


§  315.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

the  brain,  to  mania,  or  to  some  other  disease  ;  or  it  may  he  con- 
nected with  the  decay  of  old  age.  These  divisions  will  be  more 
conveniently  exhibited  in  the  following  tabular  view  :  — 


Idiocy. 

1. 

Resulting  from  congenital  defect. 

2. 

Resulting  from  an  obstacle  to  the 

Defective 

development    of    tbe    faculties, 

development 

supervening  in  infancy. 

of  tlie 

Imbecility. 

1. 

Resulting  from  congenital  defect. 

faculties. 

2. 

Resulting  from  an  obstacle  to  tbe 
development     of    tbe    faculties, 

. 

supervening  in  infancy. 

INSANITY. 

i"™"^.  {i.'^St 

Lesion  of  tlie 

Maxia. 

faculties 
subsequent     ■ 

A] 

O.  General. 

'FECTIVE,               -i  o     -n      i.-    i 

'          ^  2.  Partial. 

to  their 
development. 

Deiiextia. 

1. 

Consecutive  to  mania,  or  injuries 
of  the  brain. 

2. 

Senile,  peculiar  to  old  age."' 

§   315.    The  following  classification  of  Flemming,^  while  less 
simple,  is  very  valuable  both  for  the  delicate  precision 
Of  riem-      q£  j^g  analysis,  and  for  the  important  aid  it  aSbrds  to 
the  nomenclature  of  forensic  psychology:  — 

I.  INFIRMITAS.     (Geistesschwacbe).     Imbecility,  the  characteristic  being  the 
diminution  in  psychical  power. 
1st.  As  to  origin. 

(1)  Primaria  seu  congenita.     (Syn.   Idiotis7nus.)     A  defective  de- 

velopment perceptible  either  at  birth  or  infancy. 

(2)  E  morbo,  arising  from  wounds  on  the  head,  brain  or  nervous 

fevers,  or  epilepsy. 

(3)  Senilis,  arising   from   decrease   in   vitality   in  the  extreme 

stages  of  old  age. 
2d.  As  to  extent. 

(1)  Injirmitas  adstricta.      Limited  imbecility,  the  characteristic 
being  diminution  of  particular  organic  powers. 

(a)  Dysmenia.  Weakness  of  memory,  the  characteristic 
being  the  feebleness  of  the  reproductive  power  of 
the  perceptive  faculty,  and  the  symptoms,  an 
inability  to  remember  things  either  recent  or 
remote,  distinctly  or  at  all. 


'  Ray  on  Insanity,  71. 

256 


2  Psychiatrisches     Journal,    Bd.    I. 
Hft.  1,  p.  112. 


GENERAL    THEORIES.  [§  315. 

(6)  Injirmitas  adstricta  surdo-mutorum.     Imbecility  of  the 

deaf  and  dumb, 
(c)  Infirmitas  adstricta  ccecorinn.    Imbecility  of  the  blind. 
(2)  Injirmitas  sparsa.     General  weakness  of  mind,  the  character- 
istic being  the  absolute  or  relative  weakness  of  all  the 
mental  and  moral  functions,  and  the  symptoms,  obtuse- 
ness  and  feebleness  of  the  perceptive  and  attentive  powers  ; 
feebleness  of  comprehension,  of  ratiocination,  of  imagina- 
tion, of  memory,  in  a  variety  of  gradations. 
II.  VESANIA  (Geistes  verwirrung).    Mental  confusion,  the  characteristic  being 
a  depravity  (depravation)  of  the  psychical  powers  arising  from  excess  or 
perversion. 

1st.  Vesania  dysthymodes,  or  dysthymia,  disorder  of  temperament,  the 
characteristic  being  the  depravity  (depravation)  of  the  psychical 
powers  connected  with  an  overpowering  disturbance  of  the  tem- 
perament. Symptoms  :  an  anomalous  condition  of  the  sensi- 
bility, the  mental  tone,  the  inclinations,  and  the  impulses.  The 
consequent  deliria  are  the  invariable  eflfect  of  the  dysthymia, 
and  depend  upon  the  prevailing  feeling  or  sentiment. 

(1)  Dysthymia  transitoria  seu  subita.      Sudden  dysthymia,  the 

characteristic  being  the  suddenness  and  rapidity  of  its 
approach.  Symptoms  :  irritability,  proneness  to  agita- 
tion, irascibility,  excessive  disgust,  fear  of  death,  ex- 
treme timidity,  despair  of  happiness.  It  occurs  fre- 
quently in  the  Stadium  prodromorum  of  cerebral  affections 
and  nervous  fevers,  or  of  epilepsy  and  the  cognate  com- 
plaints ;  and  is  sometimes,  though  more  rarely,  accom- 
panied by  the  sudden  suicidal  impulse.  It  should  be 
observed  that  dysthymia  remittens  sinks  in  the  remission 
into  the  mere  dysaethesis. 

(2)  Dysthymia  adstricta,  or  partial  dysthymia,  the  characteris- 

tic being  an  anomalous  condition  of  particular  states  of 
feeling,  inclinations,  and  impulses. 

(a)  Atra  (the  Melancholia  Lypemonia  of  Esquirol),  or 
gloomy  Dysthymia,  the  characteristic  being  sad- 
ness, fear,  dread,  suspicion,  malevolence,  home- 
sickness (nostalgia),  and  the  wildness  and  ferocity 
of  the  intoxicated.  (Ferocitas  et  morositas  ebrio- 
sorum.) 

(b)  Dysthymia  Candida,  cheerful  Dysthymia  (Melan- 
cholia hilaris,  Chceromanie  Chambeyron),  the  char- 
acteristics being  hilarity,  recklessness  of  manner, 
raillery,  proneness  to  see  all  things  in  the  most 
vivacious  light. 

(c)  Dysthymia  mutabilis,  variable  Dysthymia,  the  cliar- 
acteristic  being  vacillation  between  the  two  fore- 
going forms. 

VOL.  I.— 17  257 


§  315.]       MENTAL   UNSOUNDN'ESS   CONSIDERED   PSYCHOLOGICALLY. 

(3)  Dysthymia  sparsa   {apathica),  general  Dysthymia  {Melan- 
cholia  Attonita).      The   characteristics   being   apparent 
obtuseness,    dull,   lieavy    reveries    and    abstractions, 
prevalence  of    an  indistinct   sensation   of  discomfort, 
apathy  to  all  extraneous  impressions. 
2d.   Vesania  Annoetos,  or  Anoesia.     Disturbance  of  the  understanding. 
The  characteristics  being  the  depravity  (depravation)   of  the 
psychical  powers,  ■with  a  controlling  anomalousness  of  the  intel- 
lectual faculties.      Symptoms,  deliria   of  various   kinds,  with 
manifestations  of  Dysthymia,  which,  however,  are  merely  sub- 
ordinate. 

(1)  Anoesia    Transitoria,    or    Subita.     Sudden    Anoesia.     The 

characteristics  being  unexpected  appearance  and  rapid 
subsidence. 

(a)  Anoesia  efebre.     Febrile  delirium. 

(6)  Anoesia  e  potu  nimio  {ebri etas).     Drunkenness. 

(c)  Anoesia  ex  affectu,  madness  caused  by  agitation 

of  mind, 
(c?)  Anoesia  semisomnis.     Confusion  of  mind  in  sleep. 

Sleep-drunkenness. 
(e)  Anoesia  Somnambula,  or  Spastica;  Somnambulism. 

(2)  Anoesia  continiia,  chronic  Anoesia. 

(3)  Anoesia  remittens.     Remittent  Anoesia. 

(4)  Anoesia  adstricta,  partial  Anoesia  or  Lunacy.    The  charac- 

teristics being  delirium  in  particular  intellectual  de- 
partments. 

(a)  Anoesia  ad  sensationes.  Hallucinations  (deliria  of 
the  senses).  Var.  a  fallacia  sensuum  et  halluci- 
natio  ebriosoriim  (derangement  of  the  senses  con- 
sequent on  excess  of  drinking). 

(b)  Anoesia  ad  cogitationes,  eccentricity,  fixed  insane 
ideas. 

(5)  Anoesia  sparsa.     General  Anoesia  or  lunacy,  the  charac- 

teristics being  deliria  in  every  department  of  the  intel- 
lectual faculties.     Var.   a  Anoesia  potatorum   (^Delirium 
tremens) . 
3d.   Vesania  maniaca  sue  Mania.     The  characteristic  being  a  depravity 
(depravation)  of  the  psychical  functions,  with  a  concurrent  ano- 
malousness of  the  emotional   and  intellectual   faculties.     The 
symptoms  are  a  violent  and  perverse  temper,  inclinations  and 
impulses,  with  violent  deliria,  which  mutually  sustain  and  ag- 
gravate each  other. 

(1)  Mania  transitoria  subita,  sudden  mania,  the  characteristic 
being  a  sudden  breaking  out  of  mania  without  percep- 
tible premonitory  stages,  and  without  previous  Dys- 
thymia or  Aiioesia ;  generally  a  crisis  in  sleep,  or  transi- 
tion to  the  second  class. 

258 


GENERAL   THEORIES.  [§  316. 

(a)  Mania  subita  a  fehre  {Delirium  encephaliticum) , 
sudden  delirium,  with  feverish  symptoms  of  the 
brain  and  nerves. 

(6)  Mania  subita  a  potu  nimio,  arising  from  and  during 
intoxication. 

(c)  Mania  subita  ex  affectu,  mania  caused  by  excessive 
agitation  of  the  affections. 

(f?)  Mania  subita  e  partu,  mania  connected  with  par- 
turition. 

(e)  Mania  subito  e  morbo  occulta  (vulgo),  Amentia  oc- 
culta, which  also  includes  the  previous  species. 

(2)  Mania  continua,  permanent  mania. 

(3)  Mania  remittens,  Remittent  mania.     (Remark — Remittent 

mania  in  remission  turns  into  Anoesia,  in  some  cases 
immediately  into  Dysthymia.) 

(4)  Mania   adstricta    seu    instinctiva.     Moral  Insanity  (^Mania 

sine  delirio  of  Pinel ;  Monomanie  instinctive  of  Marc  ;  Mania 
affectiva ;  Folie  raisonante)  ;  the  characteristics  being 
insanity,  apparently  confined  to  specific  morbid  im- 
pulses. This  class  is  almost  always  connected  with 
the  symptoms  of  Mania  transitoria  seu  subita. 

(5)  Mania  sparsa.    General  mania  is  the  characteristic,  being 

a  depravity  (depravation)  of  both  the  moral  and  intel- 
lectual powers. 

&  316.  To  Ellinger^  we  are  indebted  for  the  follow-   -p,,. 

"  *=  Ellmger. 

ing:— 

I.  Diseases  of  the  afi"ections,  when  the  affections,  sentiments,  and  desires  are 
preponderatingly  alienated,  while  the  intellectual  faculties  are  affected 
in  an  inferior  or  at  least  a  secondary  degree. 

(a)  Melancholy,  the  prevalent  type  being  sadness,  depression, 

fear,  dread,  and  despair. 
(6)  Frenzy,  the  prevalent  type  being  mirth,  mischievousness, 

anger, 
(c)  Volatility  (Launenhaftigkeit).      Alternation   between  the 
two  last-mentioned  phases. 
II.  Delirium,  the  sentiments  and  intellectual  faculties  being  equally  affected, 
and  both  the  subjective  and  objective  relations  alike  distorted. 

(a)  (6)  (c)  Characterized  by  melancholy,  frenzy,  and  the  alter- 
nation of  the  two. 
III.  Diseases  of  the  intellect,  where  the  affections  take  subordinate  part  and 
the  intellect  is  mainly  disordered. 
(a)  Partial. 
(6)  General, 
(c)  Debility,  including  idiocy  and  imbecility. 

'  Ueber  die  antropologischen  Momente  der  Zurechnungs  fahigkeit.  Ludwigs- 
burg,  1846. 

259 


§  320.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  317.  Without  attempting  a  formal  or  scientific  analysis,  it  is 
now  proposed  to  consider  the  several  points  in  which  psychology 
comes  in  contact  with  the  law  of  the  land. 

§  318.  To  those  who  have  examined  that  portion  of  the  preced- 
Three  pro-  ^^S  P^-g^s  which  treats  of  the  legal  relations  of  mental 
minent         unsoundness,  it  will  be  obvious  that  no  hypothesis  can 

theories  as  .  .  ,  •'  -^ 

to  cause  of  be  constructed  which  will  meet  with  exactness  every  pos- 
sible future  case.  No  general  definition  has,  therefore, 
been  attempted,  and  it  is  sufficient  at  present  to  notice  the  three 
prominent  hypotheses  by  which  the  cause,  rather  than  the  nature, 
of  mental  unsoundness  has  been  explained.  This  examination  is 
here  made  the  more  thorough,  from  the  fact  that  it  is  upon  the 
result  of  this  inquiry  that  the  philosophy  of  the  common  law  doc- 
trine of  insanity  must  depend. 

II.   PSYCHICAL  THEORY. 

§  319.  This  is  based  on  the  assumption  that  the  primitive  source 
of  these  diseases  is  in  the  soul  itself,  and  that  the  soul 
the  origin      is  that  which  originally  suffers,  and  imparts,  when  there 
ease.^  ^^'     ^^  insanity,  its  malady  to  the  body.^ 

III.    SOMATIC  THEORY. 

§  320.  The  somatic  theory  takes  for  granted  that  the  soul  itself, 
_  as  such,  is  incapable  of  orisrinatino;  a  disease,  but  that' 

Disturb-  '  .  ^  .  °  .        . 

ancesofthe  the  occasion  of  every  affection  of  the  mind  is  to  be  found 
du^ed  by  i^^  some  abnormity  of  bodily  development,  and  that  aber- 
normlties"  I'ations  of  mind  are  nothing  more  than  disturbances  of 
some  functions  of  the  soul  produced  by  bodily  abnormi- 
ties. This  theory  resolves  itself  into  various  subdivisions.  One 
party  assumes,  that,  while  every  mental  disease  is  to  be  deduced 
from  bodily  causes,  it  is  still  to  be  treated  as  a  self-existent  disease ; 
while  others  maintain  that  there  can  be  no  such  thing  as  a  diseased 
state  of  the  mind,  and  that  what  we  usually  designate  as  such  is 

'  See  an  exposition   of  this  in  Dr.  to  President  Noah  Porter's  admirable 

Henry  Monro's  "  Remarks  on  Insanity,  work  on  the  Human  Intellect,  of  recent 

its  Nature  and  Treatment,"   London,  (1872)  psychological  treatises  the  most 

1850.     I  also  call  particular  attention  judicious  as  well  as  the  most  exact. 

260 


GENERAL    THEORIES.  [§  820. 

nothing  more  than  a  symptom  of  some  bodily  disorder.^  The 
somatic  theory,  so  far  as  it  involves  phrenology,  is  examined  with 
singular  accuracy  and  thoroughness  by  Sir  William  Hamilton,  in 
the  appendix  to  the  first  volume  of  his  Lectures  on  Metaphysics.^ 
He  first  discusses  the  phrenological  doctrine  of  the  cerebellum,  and 
by  a  series  of  experiments  explodes  the  phrenological  hypothesis. 
After  havijig  weighed,  with  peculiar  care,  and  under  precautions 
which  exclude  all  the  known  possibilities  of  mistake,  over  one 
thousand  brains  of  fifty  different  species  of  animals,  he  shows  : — 

(1)  The  cerebella  of  animals  generally  are  not,  during  a  certain 
period  subsequent  to  birth,  less  in  proportion  to  the  brain  proper 
than  in  adults. 

(2)  In  no  species  of  animal  has  the  female  a  proportionally 
smaller  cerebellum  than  the  male  ;  while  in  most  species,  "  and 
this  according  to  a  certain  law,  she  has  a  considerably  larger." 

(3)  So  far  from  being  the  case  as  is  alleged  by  phrenologists, 
that  in  impuberal  animals  the  cerebellum,  in  proportion  to  the  brain 
proper,  is  greatly  less  than  in  adults,  the  contradictory  is  shown. 

(4)  The  phrenological  assertion,  that  "  the  proportion  of  the 
cerebellum  to  the  brain  proper  in  different  species  is  in  proportion 
to  the  energy  of  the  phrenological  function  attributed  to  it,"  is 
equally  groundless. 

We  add  one  or  two  distinct  points  made  by  this  most  eminent 
and  most  reliable  of  modern  psychologists:  "I  shall,  however, 
give  you  the  sample  of  another  general  fact.  The  organ  of  venera- 
tion rises  in  the  middle  on  the  coronal  surface  of  the  head.  Women, 
it  is  universally  admitted,  manifest  religious  feeling  more  strongly 
and  generally  than  men,  and  the  phrenologists  accordingly  assert 
that  the  female  cranium  is  higher  in  proportion  in  that  region  than 

•  A  very  ingenious  though  unsound  Lectures  on  Metaphysics,  pp.  650-658, 
defence  of  the  somatic  theory  will  be  where  the  phrenological  theory  is  thor- 
found  in  Mr.  M.  B.  Sampson's  "Crimi-  ouglily  demolished.  For  a  copious 
nal  Jurisprudence  considered  in  rela-  and  elaborate  history  of  materialism, 
tion  to  Cerebral  Organization,"  Lon-  coupled  with  some  ingenious  specula- 
don,  1843.  Hobbes's  famous  theory  tions  on  its  later  developments,  see 
drifts  in  the  same  direction.  The  re-  Geschichte  des  Materiulmus,  unci  Kritik 
suit  of  this  would  be  to  make  all  re-  seiner  Bedeutung  in  der  Gegemoart,  von 
straint  an  injustice.  So  far  as  concerns  Friedrich  Albert  Lange,  Iserlohn,  1866. 
phrenology,  the  reader  is  particularly  *  Gould  &  Lincoln,  1859. 
referred  to    Sir    William    Hamilton's 

261 


§  320.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

the  male.  This  I  found  to  be  the  very  reverse  of  truth,  by  a  com- 
parative average  of  nearly  two  hundred  skulls  of  either  sex.  In 
man,  the  female  encephalos  is  considerably  smaller  than  that  of  the 
male,  and  in  shape  the  crania  of  the  sexes  are  different.  By  what 
dimension  is  the  female  skull  less  than  the  male  ?  The  female  skull 
is  longer,  it  is  nearly  as  broad,  but  it  is  much  lower  than  the  male. 
This  is  only  one  of  several  curious  sexual  differences  of  the  head. 

"  I  do  not  know  whether  it  be  worth  while  mentioning,  thkt, 
by  a  comparison  of  all  the  crania  of  murderers  preserved  in  the 
anatomical  museum  of  this  university,  with  nearly  two  hundred 
ordinary  skulls  indifferently  taken,  I  found  that  these  criminals 
exhibited  a  development  of  the  phrenological  organs  of  destruc- 
tiveness  and  other  evil  propensities  smaller,  and  a  development  of 
the  higher  moral  and  intellectual  qualities  larger,  than  the  average. 
Nay,  more,  the  same  results  were  obtained  when  the  murderers' 
skulls  were  compared,  not  merely  with  common  average,  but  with 
the  individual  crania  of  Robert  Bruce,  George  Buchanan,  and  Dr. 
David  Gregory." 

Then,  as  to  the  frontal  sinuses : — 

"  I  omit  all  notice  of  many  other  decisive  facts  subversive  of  the 
hypothesis  in  question ;  but  I  cannot  leave  the  subject  without 
alluding  to  one,  which  disproves  at  one  blow  a  multitude  of 
organs,  affords  a  significant  example  of  the  accuracy  of  statement, 
and  shows  how  easily  manifestation  can,  by  the  phrenologists,  be 
accommodated  to  any  development,  real  or  supposed.  I  refer  to 
the  frontal  sinuses.  These  are  cavities  between  the  tables  of  the 
frontal  bone,  in  consequence  of  a  divergence  from  each  other. 
They  are  found  in  all  puberal  crania ;  and  are  of  variable  and 
(from  without)  wholly  inappreciable  exent  and  depth.  .  .  . 
Now  the  phrenologists  have,  fortunately  or  unfortunately,  concen- 
trated the  whole  of  their  very  smallest  organs  over  the  region  of 
the  sinus.  How  is  it  possible,  he  asks,  that  eye  or  finger  can  detect 
minute  degrees  of  cerebral  development  beyond  these  invisible, 
unknown  cavities,  of  various  extent  ?  The  phrenologists  were  not 
acquainted  with  the  anatomy  of  the  part.  Gall  asserted  that  the 
sinus  was  often  absent  in  men ;  seldom  or  never  found  in  women. 
Spurzheim  declares  that  the  frontal  sinuses  are  found  only  in  old 
persons,  or  after  chronic  insanity." 
262 


GENERAL   THEORIES.  [§  320. 

In  reply  to  this,  Sir  W.  Hamilton  shows,  after  an  inspection  of 
several  hundred  crania,  that  no  skull  is  without  a  sinus. 

Behind  the  spacious  caverns,  he  then  goes  on  to  show,  in  utter 
ignorance  of  the  extent,  frequency,  and  even  of  the  existence  of 
this  impediment,  the  phrenologists  have  placed  not  one  large,  but 
seventeen  of  their  smallest  organs. 

By  concentrating  all  their  organs  of  the  smallest  size  within  the 
limits  of  the  sinus,  they  have,  in  the  first  place,  put  the  organs 
whose  range  of  development  is  least  behind  an  obstacle  whose  range 
of  development  is  greatest. 

In  the  second  place,  they  have  at  once  thrown  one-half  of  their 
whole  organology  beyond  the  range  of  possible  discovery  and  possi- 
ble proof. 

In  the  third  place,  by  thus  evincing  that  their  observations  on 
that  one-half  had  been  only  illusive  fancies,  they  have  furnished  a 
criterion  of  the  credit  that  may  be  accorded  to  their  observations  in 
relation  to  the  other ;  they  have  shown,  in  this  as  in  other  portions 
of  their  doctrine,  that  manifestation  and  development  are  quantities, 
which  (be  they  what  they  may)  can,  on  their  doctrine,  always  be 
brought  to  an  equation. 

Fourthly,  as  if  determined  to  transcend  themselves,  and  find  "  a 
lower  deep  beneath  the  lowest,"  they  have  placed  the  least  of  their 
least  organs  at  the  very  point  where  this  great  obstacle  is  most 
potent.  The  sinus  is  almost  always  deepest  towards  the  inner  angle 
of  the  eyebrows,  and  it  is  just  there  that  the  minute  organs  of  size, 
configuration,  weight,  resistance,  etc.,  are  said  to  be. 

In  the  fifth  place,  they  have  been  quite  as  unfortunate  in  the 
location  of  the  other  minute  organs.  These  they  arrange  in  a  series 
along  the  upper  edge  of  the  orbit,  Avhere,  independently  of  the 
sinus,  the  bone  varies  more  in  thickness  than  in  any  other  part  of 
the  skull.  Here  have  they  packed  those  organs  more  closely  than 
peas  in  a  pod,  which  they  scarcely  exceed  in  size.  If  these  pre- 
tended organs  actually  and  severally  protruded  from  the  brain 
(which  they  do  not),  if  there  were  no  sinus  intervening  (as  there  is), 
if  they  were  under  the  thinnest  part  of  the  cranium  (instead  of  the 
thickest),  still  these  petty  organs  could  not  reveal  themselves  by 
showing  any  elevation,  and  especially  any  sudden  elevation  of  super- 
incumbent bone.  They  might  possibly  indent  the  inner  surface, 
and  cause  a  slight  attenuation  of  the  bone — and  this  is  all  they 

263 


§  322.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

could  do.  The  glands  of  Pacchioni,  as  thej  are  improperly  called, 
which  rise  on  the  coronal  surface  of  the  encephalos,  and  are  often 
even  larger  than  the  bodies  in  question,  though  they  attenuate  to 
the  thinnest,  never  elevate  in  the  slightest  the  external  body  plate. 
The  thoroughness  of  the  material  on  which  Sir  W.  Hamilton 
acted  is  shown  by  the  fact  that  all  the  crania  in  the  public  anatomi- 
cal museum  at  Edinburgh  were  inspected  by  him.  He  subsequently 
obtained  access  to  fifty  crania,  with  their  supposed  developments 
marked  by  Spurzheim's  own  hand,  which  had  passed  to  the  Royal 
Museum  of  Natural  History  at  Edinburgh.  By  a  tabular  view  he 
shows  that  a  large  proportion  of  the  supposed  "  organs"  were 
covered  or  crowded  by  the  frontal  sinus. 

§  321.  According  to  the  late  Dr.  Bell,  of  the  McLean  Asylum, 

Somerville,  Massachusetts,  autopsies  of  the  insane  gener- 
of  the  brain  ally  present  no  material  lesion  of  the  brain;  "changes, 
fanity'  ^^'      indeed,  there  are  to  be  seen,  but  only  those  that  may 

have  occurred  in  articulo-mortis  ;"^  and  it  was  stated  by 
Dr.  Bell,  in  support  of  this  opinion,  that  "  the  late  Dr.  Waldo  J. 
Burnett,  of  Boston,  one  of  the  most  accomplished  microscopists  in  the 
country,  had  made  examinations  of  persons  who  had  died  in  a  state 
of  chronic  insanity,  but  had  been  unable  to  discover  any  change  of 
structure  whatever,  or  any  sign  to  indicate  that  it  did  not  belong  to 
an  individual  whose  mind  was  unafi^ected.''^ 

§  322.  Bearing  on  this  point  are  some  interesting  observations 

of  Dr.  Storer,  in  his  late  work  on  "  The  Causation, 
women  Course,  and  Treatment  of  Reflex  Insanity  in  Women. "^ 
ahvays"  This  very  experienced  observer,  in  vindicating  the  posi- 
produce        ^^q^  ^j^^t  "  many  cases  of  mental  disturbance  in  women 

organic  '' 

cerebral  are  of  reflex  character,  arising  from  pelvic  irritation,  and 
that  local  treatment  would  prove  of  advantage  in  very 
many  more  cases  than  those  for  which  as  yet  it  had  ever  been  em- 
ployed," shows  that  in  a  great  majority  of  cases  insanity  is  not 
accompanied  with  organic  cerebral  change.  That  in  women  insanity 
is  generally  peripheral  and  reflex,  dependent  upon  functional  or 
organic  disturbance  of  the  reproductive  system,  he  shows  by  the 
admissions  of  psychologists  that  there  can  be  cerebral  diseases 

'  Am.   Journ.   of  Insan.   x.   p.   73.         ^  Ibid. 
Cited  in  Stover,  ut  infra,  p.  47.  ^  Boston  :   Lee  &  Sliepard,  1871. 

264 


GENERAL   THEORIES.  [§  323. 

without  insanity  and  insanity  without  cerebral  disease  ;  by  the 
result  of  autopsies ;  by  analogies  from  other  sympathetic  results ; 
by  cases  on  record  both  psychical  and  obstetrical ;  by  the  analogies 
of  the  time  of  development ;  by  the  effect  of  treatment ;  by  the 
theory  of  ultimate  causation ;  by  the  indications  of  prevention ; 
and  by  the  indications  of  rational  treatment. 

§  323.  So  far  as  concerns  autopsies,  it  is  stated  by  Dr.  Storer 
that  the  results  show  that  "  insanity  may  exist  without 
structural   changes   of  the   brain,   and   that   structural    spondence 
changes  in  the  brain  may  exist  without  insanity."     He    exterior  of 
cites  the  late  Dr.  Bell,  of  the  Somerville  Asylum,  whose    ^^^}}  ^^^ 

.  .  .  sanity. 

statement  has  been  just  given,  that  the  autopsies  of  the 
insane  generally  present  no  lesion  of  the  brain ;  and  that  the 
changes  noticeable  may  be  traceable  solely  to  death ;  and  he 
quotes  Dr.  BuckniP  as  maintaining  that  "  the  brains  of  the  insane 
appear  to  be  certainly  not  more  liable  than  those  of  others  to 
various  incidental  affections.  ...  It  seemed  reasonable  to 
expect  that  by  the  aid  of  the  microscope  one  would  be  able  to 
ascertain  whether  any  exudation  or  addition  to  the  stroma  of  the 
brain,  or  any  change  in  size,  shape,  or  proportional  number  of  its 
cells,  takes  place ;  and  in  the  indurated  brain  of  chronic  insanity, 
whether  that  finely  fibrillated  exudate,  which  has  been  described 
by  some  writers,  actually  exists  ;  also,  whether,  in  extreme  atrophy 
of  the  brain,  any  proportion  exists  in  the  diminution  or  degeneration 
in  the  form  of  the  cells  or  tubes.  In  none  of  these  points  of  in- 
quiry have  we  been  able  to  attain  the  slightest  success ^  After 
further  citations.  Dr.  Storer  proceeds  to  say  that  "  it  is  thus  seen 
not  merely  that  there  is  no  direct  correspondence  between  the 
exterior  of  the  skull  and  mental  integrity,  any  more  than  between 
the  exterior  of  the  skull  and  the  shape  and  consistence  of  its  con- 
tents." And  in  cases  of  insanity  among  women,  it  is  shown  by 
this  eminent  practitioner  that  the  causes  of  such  insanity  are  largely 
to  be  found  in  derangement  of  the  reproductive  organs,  to  be  met 
by  specific  local  treatment.  Yet,  at  the  same  time,  it  is  stated  that 
the  indulgences  allowed  to  the  mind  when  in  a  healthy  state  have 
a  large  share  in  determining  the  character  of  its  passions  when 
diseased. 

Page  430. 

265 


§  325.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  324.  The  conflict  on  this  subject  may  be  exhibited  by  a  single 
illustration.^  Ajyhasia,  or  the  loss  of  speech,  is  a  well- 
subject  ^^  known  disease,  sometimes  caused  by  defect  of  memory, 
illustrated  sometimes  by  apparent  incapacity  of  the  motor  powers. 
As  belonging  to  the  former  of  these  classes  may  be  men- 
tioned the  case  of  the  wife  of  the  Rev.  William  Jay,  hereafter  to 
be  noticed  f  and  that  of  a  person  reported  in  18T1  by  Dr.  J.  G. 
Glover  to  the  Clinical  Society  of  London.  •  In  the  latter  case,  the 
patient  was  without  any  trace  of  cerebral  disease,  with  no  hemi- 
plegia, "  with  no  difference  in  the  sensation  of  the  two  sides,  with 
ability  to  walk,  write,  and  to  protrude  the  tongue  straight ;  was 
yet  unable,  when  shown  a  familiar  object,  to  recall  the  proper  name 
for  it,  but  would  designate  a  book  before  him  as  '  good,'  '  house,' 
'  butter ;'  called  a  watch  '  tempus  fugit,'  though  able  to  write  the 
word  '  watch'  correctly."  A  similar  perversion  of  words  pervaded 
his  whole  range  of  vocal  expression.  Dr.  Rush,  in  his  chapter  on 
"  Derangement  of  the  Memory,"  speaks  (1)  of  "  oblivion  of  names 
and  vocables  of  all  kinds  ;"  (2)  of  "  substitution"  of  words,  as  in 
the  case  of  a  gentleman  "  who,  in  calling  for  a  knife,  asked  for  a 
bushel  of  wheat ;"  (3)  of  "  an  oblivion  of  the  names  of  substances  in 
a  vernacular  language,  and  a  facility  of  calling  them  by  their  proper 
names  in  a  dead  or  foreign  language,"  of  which,  in  addition  to  the 
cases  given  by  Dr.  Rush,  may  be  mentioned  that  of  the  servant  girl 
referred  to  by  Sir  W.  Hamilton,  who  repeated,  when  in  a  fever,  a 
Latin  address  she  had  heard  her  master  recite  when  sweeping  his 
room  ;  (4)  an  "  oblivion  of  all  foreign  and  acquired  languages,  and 
a  recollection  only  of  vernacular  languages  ;"  (5)  "  an  oblivion  of 
the  sound  of  words,  but  not  of  the  letters  which  compose  them." 

^325.  Aphasia  consists  of  a  confusion  of  the  idea  of  language 
as  such,  and  is  to  be  distinguished  from  aphonia,  which 

This  said  to    ,  '  °  . 

be  of  physi-  is  simply  loss  of  voice  ;  and  from  paralysis  which  affects 
*^  ■  the  tongue  or  muscles  of  articulation.  The  question  as 
to  the  physical  origin  of  aphasia  was  first  agitated  by  Gall,  who 
announced  that  the  faculty  of  language  was  seated  in  those  portions 
of  the  brain  which  rest  on  the  hinder  part  of  the  super-orbital 

•  As   to   aphasia,   see   articles   in  2    Insanity?;   23   Journ.  Ment.  Sci.  403; 
Brain,  203,  323  ;    35  Am.  Journ.  Ins.,     21  id.  406. 
an  article  entitled  Aphasia  or  Aphasic        *  Infra,  §  692. 

266 


GENERAL   THEORIES.  [§  326. 

plate  ;  and  he  associated  a  protrusion  of  the  eyes  with  this  faculty, 
giving  great  facility  in  learning  and  retaining  words.  By  Bouil- 
lard,  aphasia  was  declared  to  be  in  many  cases  associated  with  a 
diseased  or  mutilated  state  of  the  anterior  lobes  of  the  brain ;  but 
Dr.  Hammond,^  after  a  careful  survey  of  the  reported  cases,  says 
"  that  there  can  be  no  doubt  that  Bouillard  is  wrong  in  claiming 
that  injury  of  the  material  lobes  is  necessarily  followed  by  some 
derangement  in  the  faculty  of  speech."  Dr.  Hammond,  after 
reviewing  the  theories  of  Dax  and  Broca,  declares,^  (1)  "  that  the 
organ  of  language  is  situated  in  both  hemispheres,  and  in  that  part 
which  is  nourished  by  the  middle  cerebral  artery  ;"  (2)  "  that  while 
the  more  frequent  occurrence  of  right  hemiplegia,  in  connection 
with  aphasia,  is  in  great  part  the  result  of  the  anatomical  arrange- 
ment of  the  arteries  which  favors  embolism  on  that  side,  there  is 
strong  evidence  to  show  that  the  left  side  of  the  brain  is  more  inti- 
mately connected  with  the  faculty  of  speech  than  the  right."  But 
even  among  those  advocating  a  material  site  for  the  organ  of  speech, 
these  conclusions  are  not  accepted  as  absolute.  Thus  Schroeder 
van  der  Kolk,  after  a  series  of  experiments,  tells  us  that  language 
unquestionably  takes  its  origin  from  the  "  corpora  olivaria." 

§  326.  On  the  other  hand,  we  have  from  a  distinguished  practical 
physician  an  elaborate  treatise,  published  in  1870,  to    ^  . 

^   '^  '.  ^  '  Objections 

show  that  speech  has  no  material  centre ;  that  all  at-   to  this 
tempts  to  give  it  anything  but  a  psychical  origin  have 
failed ;  that  aphasia  may  and  does  exist  without  either  right  hemi- 
plegia, or  lesion  of  the  third  left  anterior  convolution,  or  any  of  the 
other  symptoms  suggested  by  materialistic  psychologists  ;  and  that 
these  lesions  may  exist  without  having  any  effect  on  speech.^ 

Another  objection  to  the  exclusively  materialistic  view  lies  in  the 
impossibility  of  reconciling  the  indelibility  of  the  records  of  memory 
with  the  acknowledged  fact  of  the  constant  efflux  and  change  of  the 
material  substance  of  the  human  frame.  Old  persons,  as  is  well 
known,  recall  Avith  peculiar  vividness  the  impressions  of  infancy. 
Between  infancy  and  old  age,  however,  the  matter  of  the  brain, 
like   that   of  the    rest  of  the  body,  has  not  merely  grown  and 

'  Diseases  of  the  Nervous   System,  the  Localization  of  Language,  by  Fred- 
New  York,  1871,  p.  183.  erick  Bateman,  M.D.,  Physician  to  the 
2  Ibid.  p.  202.  Norfolk   and  Norwich  Hospital.     Lon- 
'  On  Asphasia  or  Loss  of  Speech  and  don  :  Churchill,  1870. 

267 


§  327.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

increased,  but  has  been  subjected  to  a  series  of  evolutions  by  which 
its  substance  has  been  constantly  changed.  If  memory  is  the 
simple  inspection  of  the  inscriptions  on  a  cerebral  tablet,  then,  as 
the  tablet  changes,  memory  must  fade.  But  the  fact  is  that  memory 
is  often  intensified  in  proportion  to  the  extent  and  number  of  cere- 
bral changes  and  evolutions.  Memory  must  be,  therefore,  some- 
thing else  than  an  attribute  of  matter,  and,  if  so  with  memory,  so, 
a  fortiori,  with  the  other  functions  of  the  intellect.^ 

§  327.  Dr.  Maudsley,  the  most  eminent  English  representative 
of  this  school,  admits   that  the  evidence  on  which  the 

Materialis-  .    ,.     .      ,  ,       .  ,  ~,   . 

tic  hypo-  materialistic  hypothesis  rests  is  not  sufBcient  to  sustain 
would  it.     In  his  work  on  the  Physiology  and  Pathology  of  the 

sonai  re^'  J^'^^^d,^  he  explains  this  by  saying,  that,  "  where  the  sub- 
sponsibii-  tlety  of  nature  so  far  exceeds  the  subtlety  of  human 
investigation,  to  conclude  from  the  non-appearance  of 
change  to  the  non-existence  thereof  would  be  just  as  if  the  blind 
man  were  to  maintain  that  there  were  no  colors,  or  the  deaf  man  to 
assert  that  there  was  no  sound.  Matter  and  force  are  necessary 
coexistents,  and  mutually  suppose  one  another  in  human  thought ; 
and  to  speak  of  change  in  one  is  of  necessity  to  imply  change  in  the 
other.  .  .  .  And  there  are  numerous  facts  available  to  prove 
that  the  most  serious  modifications  in  the  constitution  of  nerve  ele- 
ment may  take  place  without  any  knowledge  of  them  otherwise  than 
by  the  correlative  change  of  energy."  But  such  reasoning  as  this 
cannot  be  accepted  in  law.  A  plaintifi"  brings  an  action  of  eject- 
ment, and,  without  producing  evidence  to  support  his  claim,  declares 
(1)  that  it  is  insusceptible  of  proof,  (2)  that  to  dispute  it  is  as  just 
as  it  would  "  be  for  the  blind  man  to  maintain  that  there  were  no  col- 
ors, or  the  deaf  man  to  assert  that  there  was  no  sound."  But  if  the 
claim  is  one  as  to  which  there  is  no  "  knowledge,"  and  to  test 
which  the  human  mind  is  impotent,  then  it  is  one  which  ought  not 
to  be  brought.  For  materialism  is  the  plaintifi"  in  a  great  suit  on 
which  great  results,  religious  and  judicial,  depend.  If  it  be  true, 
all  our  ordinary  notions  of  penal  responsibility  will  be  upset.  Thus 
Dr.  Maudsley  adopts  at  the  head  of  his  seventh  chapter,  which  dis- 
cusses volition,  Spinoza's  statement  that  "  it  is  a  delusion  on  the 
part  of  mankind  to  fancy  themselves  free  agents.     .     .     .     The 

»  See  also  infra,  §  329.  «  London,  1867,  p.  367. 

268 


GENERAL   THEORIES.  [§  328. 

idea  that  men  are  in  possession  of  their  liberty  arises  from  the  fact 
that  they  are  ignorant  of  the  cause  for  their  actions."  This  Dr. 
Maudsley  expands  so  as  to  make  it  appear  that  all  acts  are  the 
result  of  material  necessity.  The  law,  on  the  other  hand,  holds 
that  all  acts,  so  far  as  concerns  the  sane,  are  free.  When  Dr. 
Maudsley  assails  this  settled  position,  we  cannot  allow  ourselves  to 
be  convinced,  when  we  call  for  proof,  by  being  told  that  we  are  like 
blind  and  deaf  men  who  undertake  to  judge  of  color  and  sound. 

§  328.  Dr.  Maudsley,  however,  is  careful  to  disclaim  any  neces- 
sary relation  between  materialism  and  the  doctrines  of 

,        .  ,.  ,     -,  .,.,.-,,  ,      Though  it 

the  immortahty  and  future  responsibility  of  the  soul,  is  claimed 
"  Whosoever,"  he  writes,^  "  believes  sincerely  in  the  doc-  feet  future 
trine  of  the  resurrection  of  the  body ,  as  taught  by  the  Apos-  respousi- 
tle  Paul,  which  all  Christians  profess  to  do,  must  surely 
have  some  difficulty  in  conceiving  the  immortality  of  the  soul  apart 
from  that  of  the  body  ;  for  if  the  apostle's  preaching  and  the  Chris- 
tian's faith  be  not  in  vain,  and  the  body  do  rise  again,  then  it  may 
be  presumed  that  the  soul  and  it  will  share  a  common  immortality, 
as  they  have  shared  a  common  mortality.  So  far,  then,  from  mate- 
rialism being  the  negation  of  immortality,  the  greatest  of  the  apostles 
earnestly  preached  materialism  as  essential  to  the  life  which  is  to 
come.  There  is  little  or  less  justification  for  saying  that  material- 
ism involves  of  necessity  the  denial  of  free  will.  The  facts  on 
which  the  doctrine  of  free  will  are  based  are  the  same  facts  of  ob- 
servation, whether  spiritualism  or  materialism  be  the  accepted  faith, 
and  the  question  of  their  interpretation  is  not  essentially  connected 
with  the  one  or  the  other  faith ;  the  spiritualist  may  consistently 
deny,  and  the  materialist  consistently  advocate,  free  will.  In  like 
manner,  the  belief  in  the  existence  of  God  is  nowise  inconsistent 
with  the  most  extreme  materialism.  .  .  .  The  spiritualist  may 
deny  God  the  power  to  make  matter  think,  but  the  materialist  need 
not  deny  the  existence  of  God  because  he  holds  that  matter  may 
be  capable  of  thought."^ 

'  Body  and  Mind,  London,  1870,  p.     topic,  by  Mr.   I.  B.   Dalgairns,  in  the 
123.  Cotemporary    Review    for     December, 

2  See   also  a  curious   essay  on  this     1870 ;  and  see  infra,  §§  332-335. 

269 


§  329.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 
IV.    INTERMEDIATE  THEORY. 

1.  Its  basis. 

§  329.  This  view  attributes  to  the  body  and  the  soul  alike  origi- 
native influence,  in  the  growth  of  mental  diseases.^     The  theory  is 


•  See  a  very  capable  sketch  of  these 
theories  in  Schurmayer,  Gerichtliche 
Medicin,  §  521,  from  which  this  analysis 
is  taken  ;  and  see  also  particularly  Dr. 
Rush's  examination  of  the  same  points 
in  his  treatise  on  the  Mind,  pp.  12,  13, 
14,  and  where  that  eminent  authority 
(p.  16)  localizes  madness  in  the  blood- 
vessels of  the  brain. 

Feuchtersleben,  in  his  celebrated 
work  (Principles  of  Medical  Psycho- 
logy, translated  by  Evans  Lloyd, 
printed  by  the  Sydenham  Society,  Lon- 
don, 1847),  may  be  considered  as  adopt- 
ing the  intermediate  theory.  Insanity, 
he  tells  us,  is  not  either  a  bodily  or  a 
mental  disease,  being  a  disturbed  recip- 
rocal relation  of  mind  and  body.  Dr. 
Jamieson  (Lectures  on  the  Med.  Jur. 
of  Insanity,  by  Robert  Jamieson,  M.D.) 
takes  this  same  view. 

The  religious  aspects  of  the  question 
are  well  discussed  in  the  London  Chris- 
tian Observer,  vol.  29,  p.  265,  and  by 
the  Rev.  Dr.  Jones,  in  "Man,  Moral 
and  Physical,"  Phil.  1860. 

Sir  Benjamin  Brodie,  in  an  autho- 
ritative essay  (Psychological  Inqui- 
ries, etc.,  London,  1854),  gives  the 
following  conclusive  objections  to  the 
phrenological  phase  of  the  somatic 
theory  :  ' '  Now  there  are  two  simple 
anatomical  facts  which  the  founders  of 
this  system  have  overlooked,  or  with 
which  they  are  probably  unacquainted, 
and  which  of  themselves  afford  a  suffi- 
cient contradiction  of  it. 

"1st.  They  refer  the  mere  animal 
propensities  chiefly  to  the  posterior 
lobes,  and  the  intellectual  faculties  to 
the   anterior  lobes   of    the   cerebrum. 

270 


But  the  truth  is,  that  the  posterior 
lobes  exist  only  in  the  human  brain, 
and  in  that  of  some  of  the  tribes  of 
monkeys,  and  are  absolutely  wanting 
in  quadrupeds.  Of  this  there  is  no 
more  doubt  than  there  is  of  any  other 
of  the  best  established  facts  in  anatomy ; 
so  that,  if  phrenology  be  true,  the 
marked  distinction  between  man  on 
the  one  hand,  and  a  cat,  or  a  horse,  or 
a  sheep  on  the  other,  ought  to  be,  that 
the  former  has  the  animal  propensities 
developed  to  their  fullest  extent,  and 
that  these  are  deficient  in  the  latter. 

"2dly.  Birds  have  various  propen- 
sities and  faculties  in  common  with  us, 
and  in  the  writings  of  phrenologists 
many  of  their  illustrations  are  derived 
from  this  class  of  vertebral  animals. 
But  the  structure  of  the  bird's  brain  is 
essentially  different,  not  only  from  that 
of  the  human  brain,  but  from  that  of 
the  brain  of  all  mammalia.  In  order 
that  I  may  make  this  plain,  you  must 
excuse  me  if  I  repeat  what  I  said  on 
the  subject  formerly.  In  the  mammalia 
the  name  of  the  corpus  striatum  has  been 
given  to  each  of  two  organs  of  a  small 
size  compared  with  that  of  the  entire 
brain,  distinguished  by  a  peculiar  dis- 
position of  the  gray  and  the  fibrous  or 
medullary  substance  of  which  they  are 
composed,  and  placed  under  the  entire 
mass  of  the  hemispheres  of  the  cere- 
brum. In  the  bird's  brain  what  ap- 
pears to  a  superficial  observer  to  cor- 
respond to  these  hemispheres  is  found, 
on  a  more  minute  examination,  to  be 
apparently  the  corpora  striata  developed 
to  an  enormous  size ;  that  which 
really  corresponds  to  the  cerebral  hemi- 


GENERAL   THEORIES. 


[§  329. 


the  one  best  sustained  by  modern  induction,  and  is  that   Body  and 

soul  3.1ikG 

which  is  most  consistent,  as  will  presently  be  seen,  with    the  ori^n 
the  Christian  standard.  °^  *^^^"'^''- 

Independently  of  the  pathological  diflficulties  in  the  way  of  the 
somatic  theory,  psychological  research  testifies  strongly  against 
it.^  The  mental  and  moral  functions  are  the  immediate  products  of 
an  independent  sphere  of  organism,  and  not  to  be  explained  by 
anything  lying  outside  of  that  sphere.  The  brain  and  the  nerves 
have  only  the  physical  part  of  perception  and  motion,  and  to  some 
extent  the  regulation  of  the  functions,  to  perform ;  but  the  soul 
cannot  but  be  considered  as  distinct  from  this  activity  of  the  nerves. 
The  somatic  theory,  which  confounds  the  two,  will  never  be  able 
to  make  a  satisfactory  distinction  between  palsy  and  imbecility, 
between  convulsions  and  ravings,  between  sensuous  hallucinations 
and  insanity.^  This  theory,  therefore,  fails  in  affording  support  to 
any  practical  system  of  therapeutics. 


spheres  being  merely  a  thin  layer  ex- 
panded over  their  upper  surface,  and 
presenting  no  appearance  of  convolu- 
tions. It  is  plain,  then,  that  there  can 
be  no  phrenological  organs  in  the  bird's 
brain,  corresponding  to  those  which 
are  said  to  exist  in  the  human  brain, 
or  in  that  of  other  mammalia.  Yet 
birds  are  as  pugnacious  and  destruc- 
tive, as  much  attached  to  the  localities 
in  which  they  reside,  as  any  individ- 
ual among  us." 

In  his  interesting  work  on  Criminal 
Jurisprudence,  Mr.  Sampson  adopts  the 
views  of  the  author  of  "  Vestiges  of  the 
Natural  History  of  Creation,"  and 
ascribes  every  criminal  action  to  some 
abnormal  or  morbid  condition  of  the 
cerebral  organization.  This  funda- 
mental proposition  is,  that  "every 
manifestation  of  the  mind  depends 
upon  the  confirmation  and  health  of  its 
material  instrument,  the  brain  ;  and, 
as  it  is  not  the  function  of  a  sound  and 
healthy  brain  to  give  rise  to  any  other 
than  healthy  manifestations,  so  no 
error  of  judgment  can  ever  arise  but  as 


the  result  of  a  defective  condition  of 
that  organ."     He  proceeds  to  say  : — 

"Mr.  Hurlbut,  an  eminent  counsel- 
lor, and  one  of  the  supreme  judges  in 
the  state  of  New  York,  in  his  '  Essays 
on  Human  Rights  and  Political  Gua- 
rantees,' a  work  which  is  well  worthy 
of  perusal,  promulgates  the  same  doc- 
trine, which,  on  the  other  hand,  is  very 
ably  controverted  by  Dr.  Hood — '  Sug- 
gestions for  the  further  provision  of 
Criminal  Lunatics,  by  Charles  Hood, 
M.D.     London,  1854.     pp.  126,  127.' " 

'  Supra,  §§  320-327.  Siebold,  Lehr- 
buch  der  Gericht.  Med.,  Berlin,  1847, 
§  194 ;  L.  Krahmer,  Handbuch  der 
Gericht.  Med.,  Halle,  C.  A.  Schwet- 
schke,  1851,  §  126;  Heinroth,  Syst. 
der  psychischgericht.  Med.,  Leipsic, 
1825  ;  Kant,  Anthropologie,  Konigsb. 
1798  ;  Metzger's  Ger.  Med.  Abhaudl., 
Konigsb.  1803. 

2  Lemons  Cliniques  sur  I'Alienation 
Mentale,  par  Falret,  le9on  1,  p.  8, 
Paris,  1854.  The  most  thorough  of 
the  German  advocates  of  the  somatic 
theory  is   Friedreich,   particularly  in 

271 


§  330.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOQICALLT. 


Psycho- 
logical 
theory  too 
great  a  re- 
action 
from  the 
somatic. 


§  330.  The  psychological  theory,  at  its  first  inception,  split  upon 
the  opposite  rock,  in  denying  the  influence  of  the  physi- 
cal processes  upon  mental  diseases  in  the  face  of  experi- 
ence. In  opposition  to  the  somatists,  it  was  thought 
necessary  to  exclude  all  natural  causes  from  the  explana- 
tion of  the  origin  of  mental  affections,  and  to  ascribe 
them  to  an  act  of  voluntary  self-inthralment,  which,  in  all  cases, 
was  to  be  attributed  to  some  prior  moral  excess  or  delinquency  in- 
curred with  a  knowledge  of  the  consequences.  But  a  derangement 
of  mind  is  not  identical  with  sin.  For,  though  every  vice,  every 
sin,  is  an  abnormity  of  the  soul,  yet  every  abnormity  of  the  soul  is 
not  sin.  A  lunatic  may  be,  in  a  human  sense,  innocent  of  posi- 
tive guilt ;  and,  on  the  other  hand,  the  worst  of  criminals  may 
retain  his  sanity.  It  is  impossible  to  adhere  to  this  doctrine  in 
practice,  without  reducing  the  entire  treatment  of  the  disease  to  a 
system  of  rewards  and  punishments  ;  and  the  vagueness  of  the  idea 
of  freedom  and  constraint,  the  impossibility  of  distinguishing  be- 
tween the  moral  thraldom  of  the  criminal  and  that  of  the  sick  man, 
will  throw  into  confusion  the  entire  system  of  forensic  psychology.^ 
It  is  equally  wrong  to  derive  all  diseases  of  the  mind  from  the  pas- 
sions, although  the  latter  may  be  important  causes,  and,  in  the  more 
advanced  stages,  symptoms  of  insanity .^  At  the  same  time,  as  will 
hereafter  be  more  fully  shown,^  there  is  in  the  mass  of  cases  of 
insane  convicts  such  an  amount  of  responsibility  as  to  require  the 
infliction  of  a  degree  of  punishment  which,  though  different  from 
that  imposed  on  the  sane,  will  yet  be  accompanied  with  a  corrective 
as  well  as  a  preventive  discipline. 


his  "  Historisch-kritisclie  Darstellung 
der  Theorien  iiber  das  Wesen  und  den 
Sitz  der  psychischen  Krankheiten," 
Leipsic,  1836. 

'  Etudes  Medico-psycliologiques,  par 
M.  Renaudin,  p.  166,  art.  30,  Sur  la 
responsabilite  morale,  Paris,  1854 ;  Le- 
mons Cliniques  de  M.  Falret,  p.  11, 
discours  d'ouverture,  Paris,  1854 ; 
Manuel  Complet  de  Medecine  Legale, 
par  J.  Briand,  sect,  troisieme,  art.  iii. 
p.  560,  Paris,  1852. 

*  See  infra,  §  347.  Heinroth  is  the 
leading  representative  of  the  psycho- 

272 


logical  theory.  See  his  "  Lehrbuch 
der  Seelenkrankheiten,"  Leipsic,  1818, 
and  his  "  System  der  psychischgericht- 
lichen  Medicin,"  Leipsic,  1825.  Dr. 
Mayo,  in  his  "Medical  Testimony  on 
Lunacy,"  goes  some  distance  in  the 
same  direction  ;  and,  as  has  been  seen, 
very  justly  argues  in  favor  of  a  dis- 
crimination of  punishment  between  the 
malicious  and  unconscious  insane  cri- 
minal.    Mayo,  etc.,  50,  51. 

^  See,  to   this   effect,   HoltzendorflPa 
Enc.  1870,  tit.  Wahnsinn. 


GENERAL   THEORIES.  [§  332. 

§  331.  The  intermediate  theory  is  that  to  which  the  soundest 

psychologists  now  tend.     "  In  the  first  place,"  says  Sir 

;,/„.         ?^       .,.  .    ,  •  1  1  .  Sound 

William  Hamilton,  ''  there  is  no  good  ground  to  suppose    psychoio- 

that  the  mind  is  situated  solelj  in  the  brain,  or  exclu-   fo^jnter^ 
sively  in  any  one  part  of  the  body.     On  the  contrary,    mediate 
the  supposition  that  it  is  really  present  wherever  we  are 
conscious  that  it  acts — in  a  word,  the  Peripatetic  aphorism,  the 
soul  is  all  in  the  whole  and  all  in  every  part — is  more  philosophical, 
and  consequently  more  probable,  than  any  other  opinion.     It  has 
not  been  always  noticed,  even  by  those  who  deem  themselves  the 
chosen  champions  of  the  immortality  of  the  soul,  that  we  materialize 
mind  when  we  attribute  to  it  the  relations  of  matter.     Thus,  we 
cannot  attribute  a  local  seat  to  the  soul  without  clothing  it  with  the 
properties  of  extension  and  place,  and  those  who  suppose  this  seat 
to  be  but  a  point  only  aggravate  the  difiiculty.     Admitting  the 
spirituality  of  mind,  all  that  we  know  of  the  relation  of  soul  and 
body  is  that  the  former  is  connected  with  the  latter  in  a  way  of 
which  we  are  wholly  ignorant ;  and  that  it  holds  relations,  different 
both  in  degree  and  kind,  with  different  parts  of  the  organism.     We 
have  no  right,  however,  to  say  that  it  is  limited  to  any  one  part  of 
the  organism ;  for  even  if  we  admit  that  the  nervous  system  is  the 
one  to  which  it  is  proximately  united,  still  the  nervous  system  is 
itself  universally  ramified  throughout  the  body ;  and  we  have  no 
more  right  to  deny  that  the  mind  feels  at  the  finger-points,  as  con- 
sciousness assures  us,  than  to  assert  that  it  thinks  exclusively  in 
the  brain.     The  sum  of  our  knowledge  of  the  connection  of  mind 
and  body  is,  therefore,  this :    that  the  mental  modifications  are 
dependent  on  certain  corporal  conditions  ;  but  of  the  nature  of  these 
conditions  we  know  nothing.     For  example,  we  know,  by  experi- 
ence, that  the  mind  perceives  only  through  certain  organs  of  sense, 
and  that  through  these  different  organs  it  perceives  in  a  different 
manner.     But  whether  the  senses  be  instruments,  whether  they  be 
media,  or  whether  they  be  only  partial  outlets  to  the  mind  incar- 
cerated in  the  body,  on  all  this  we  can  only  theorize  and  con- 
jecture."^ 

§  332.  The  intermediate  theory  has  at  least  not  been  rejected 
by   standard   Christian    theologians.      "The    resurrection,"    says 

*  Sir  William  Hamilton's  Lectures  on  Metaphysics,  p.  356.     See  infra,  347. 

VOL.  L— 18  273 


§  833.]      MENTAL   UNSOUNDNESS   CONSIDEKED   PSYCHOLOGICALLY. 

This  theory  Bishop  Pearson,  "  is  not  only  in  itself  possible,  so  that 
hystaiuiard  ^^  ^^^  ^^^^  ^^J  reason  Can  absolutely  deny  it,  but  it 
theologians  jg  ^igQ  upon  many  considerations  highly  probable,  so 
that  all  men  may  very  rationally  expect  it.  If  "we  consider  the 
principles  of  humanity,  the  parts  of  which  we  all  consist,  we  cannot 
conceive  this  present  life  to  be  proportionable  to  our  composition. 
The  souls  of  men,  as  they  are  immaterial,  so  they  are  immortal ; 
and  being  once  created  by  the  Father  of  spirits,  they  receive  a 
subsistence  for  eternity  ;  the  body  is  framed  by  the  same  God  to 
be  a  companion  for  his  spirit,  and  a  man  bom  into  the  world  con- 
sisteth  of  these  two.  Now,  the  life  of  the  most  aged  person  is  but 
short,  and  many  far  ignobler  creatures  have  a  longer  duration. 
Some  of  the  fowls  of  the  air,  several  of  the  fishes  of  the  sea,  many 
of  the  beasts  of  the  field,  divers  of  the  plants  of  the  earth,  are  of  a 
more  durable  constitution,  and  outlive  the  sons  of  men.  And  can 
we  think  that  such  material  and  mortal,  that  such  inunderstanding 
souls,  should  by  God  and  nature  be  furnished  with  bodies  of  so 
long  permansion,  and  that  our  spirits  should  be  joined  unto  flesh 
so  subject  to  corruption,  so  suddenly  dissolvable,  were  it  not  that 
they  lived  but  once,  and  so  enjoyed  that  life  for  a  longer  season, 
and  then  went  soul  and  body  to  the  same  destruction,  never  to  be 
restored  to  the  same  subsistence  ?  But  when  the  soul  of  man, 
which  is  immortal,  is  forced  from  its  body  in  a  shorter  time,  nor 
can  by  any  means  continue  with  it  half  the  years  which  many  other 
creatures  live,  it  is  because  this  is  not  the  only  life  belonging  to  the 
ions  of  men,  and  so  the  soul  may  at  a  shorter  warning  leave  the 
body  which  it  shall  resume  again. "^ 

§  333.  To  this  may  be  added  the  authority  of  Isaac  Taylor,  who, 
in  his  "  Physical  Theory  of  another  Life,"  after  point- 
poreaiity^'  i^g  out  how  completely  the  question  whether  the  human 
of  the  soul  gQ^jj  jg  gygj,  actually  or  entirely  separated  from  matter  is 
canon  of  passed  ovcr  by  St.  Paul  as  an  inquiry  altogether  irrele- 
vant to  religion,  continues :  "  Let  it  be  then  distinctly 
kept  in  view  that,  although  the  essential  independence  of  mind  and 
matter,  or  the  abstract  possibility  of  the  former  existing  apart  from 
corporeal  life,  may  well  be  considered  as  tacitly  implied  in  the 

•  Pearson  on  the  Creed,  ed.  1853,  p.  558.     See  also  Dr.  Maudsley's  remarks, 
supra,  §  328. 

274 


GENERAL   THEORIES.  [§  336. 

Christian's  scheme,  yet  that  an  actual  incorporeal  state  of  the 
human  soul,  at  any  period  of  its  course,  is  not  involved  in  the  prin- 
ciples of  our  faith  any  more  than  is  explicitly  asserted." 

§  884.  "  "We  are  unable,"  says  Pascal,  "  to  conceive     Mind  and 
what  is  mind ;  we  are  unable  to  perceive  what  is  matter ;     united  in 
still  less  are  we  able  to  conceive  how  these  are  united  ;     ture!^^" 
yet  this  is  our  proper  nature." 

§  385.  "  Such,"  says  President  Edwards,  the  first  metaphy- 
sician of  his  country,  and  perhaps  the  first  of  his  age, 

,     ,  ,  1  1     ,1      1  f    ^  •  And  react 

"  seems  to  be  our  nature,  and  such  the  laws  oi  the  union  upon  each 
of  soul  and  body,  that  there  never  is,  in  any  case  what-  *^*  ^^' 
soever,  any  lively  and  vigorous  exercise  of  the  will  or  inclination 
of  the  soul  without  some  effect  upon  the  body  in  some  alteration  of 
the  motion  of  its  fluids,  and  especially  of  the  animal  spirits.  And, 
on  the  other  hand,  from  the  same  laws  of  the  union  of  the  soul  and 
body,  the  constitution  of  the  body  and  the  motion  of  its  fluids  may 
promote  the  exercise  of  the  affections,  but  yet  it  is  not  the  body, 
but  the  mind  only  that  is  the  proper  seat  of  the  affections.  The 
body  of  man  is  no  more  capable  of  being  really  the  subject  of  love 
or  hatred,  joy  or  sorrow,  fear  or  hope,  than  the  body  of  a  tree,  or 
than  the  same  body  of  man  is  capable  of  thinking  and  understand- 
ing. As  it  is  the  soul  only  that  has  ideas,  so  it  is  the  soul  only 
that  is  pleased  or  displeased  with  its  ideas.  As  it  is  the  soul  only 
that  thinks,  so  it  is  the  soul  only  that  loves  or  hates,  rejoices  or  is 
grieved  at  what  it  thinks  of.  Nor  are  these  motions  of  the  animal 
spirits  and  fluids  of  the  body  anything  properly  belonging  to  the 
nature  of  the  affections,  though  they  always  accompany  them  in  the 
present  state,  but  are  only  effects  or  concomitants  of  the  affections 
that  are  entirely  distinct  from  the  affections  themselves,  and  no  way 
essential  to  them ;  so  that  an  unbodied  spirit  may  be  as  capable  of 
love  and  hatred,  joy  or  sorrow,  hope  or  fear,  or  other  affections,  as 
one  is  that  is  united  to  a  body."^ 

2.  Its  effect  on  responsibility. 

§  886.  The  intermediate  theory,  as  above  stated,  relieves  the 
doctrine  of  criminal  responsibility  of  some  of  its  chief  difficulties. 
If  the  somatic  theory  be  correct,  then  a  criminal  propensity  is 

'  Edwards  on  Religious  Affections,  p.  15. 

275 


§  337.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

interme-  a  physical  malformation,  for  which  the  defendant  is  no 

ory  re-  more  responsible  than  he  is  for  a  malformation  of  the 

trine  of  '  limbs.     A  squint  in  morals,  to  carry  out  a  metaphor 

MiS^o^f"  ^^  Chief  Justice  Gibson,  would  in  this  view  be  no  more 

manydiffi-  a  fault  than  a  squint  of  the   eyes.     Such  a  criminal 

Clllti6S 

may  be  prevented  from  future  misconduct ;  but,  logically, 
neither  punitive  nor  reformatory  discipline  can  be  applied  to  him ; 
the  first  because  it  is  unjust,  the  second  because  it  is  hopeless.^ 
Here,  indeed,  the  representatives  of  the  somatic  theory  practically 
divide.  By  some,  permanent  incarceration — and  this  solely  on 
preventive  grounds— is  the  only  penalty  to  which  criminals  can  be 
properly  subject.  By  others,  among  whom  Mr.  Bain  is  a  modified 
representative,  punishment  is  vindicated  as  having  a  necessary  moral 
effect  in  reforming  the  criminal.^ 

On  the  other  hand,  if  the  psychological  theory  be  correct, 
insanity,  by  becoming  an  organic  intellectual  lesion,  is  as  much 
withdrawn,  it  may  be  argued,  from  the  causal  power  of  the  will  as 
it  is  on  the  somatic  basis.  It  cannot  be  reached  by  penal  discipline, 
for  by  the  very  hypothesis  on  which  it  is  framed  it  rises  above  the 
action  of  the  nervous  and  corporeal  system.  It  cannot  be  reformed 
by  bodily  correction ;  and  to  attempt,  therefore,  by  such  correction 
to  reach  it  would  be  both  unjust  and  nugatory. 

§  337.  The  intermediate  theory,  however,  teaches  us  that  insanity 

(with  the  exception  of  idiocy  and  certain  hereditary  and 
pei^aiXsci-  Organic  types)  is  (1)  in  a  large  measure  the  result  of 
d  t^'^m^n^d   ^^^^^^^  ^^^  physical  causes,  often  voluntarily  induced, 

partly  by  the  negligence  and  partly  by  the  misconduct 
of  the  patient  himself ;  and  (2)  that  in  such  cases,  by  being  made 
the  subject  of  penal  discipline,  it  may  often  be  prevented  or 
restrained.  The  remaining  difficulty  is  to  determine  what  are  the 
cases  to  which  such  penal  discipline  is  applicable.  And  here  the 
analogies  of  the  English  common  law  give  us  a  safe  test.  Where 
mania- ci-potu  results  from  drink,  the  party  becomes  irresponsible. 
Where,  however,  he  commits  a  crime  in  a  voluntary  drunken  fit, 
this  drunkenness  avails  him  nothing,  unless  to  relieve  him  from  the 
implication  of  premeditated  malice  or  complex  fraud.  Thus,  when 
the  fatal  assault  is  conceived  by  a  party  when  intoxicated,  he  is 

>  See  infra,  §  348.  2  gge  supra,  §§  146-160. 

276 


GENERAL   THEORIES.  [§  337. 

not  presumed  to  act  with  premeditation  or  with  that  specific  intention 
to  take  life  which  is  necessary  to  subject  him  to  capital  punishment. 
So  it  is  in  insanity.  Mania,  when  a  permanent  disorder  of  the 
intellect,  by  incapacitating  the  party  from  reasoning  on  the  par- 
ticular issue,  relieves  him  from  criminal  responsibility.  But  a  mere 
"  monamania,"  unaccompanied  by  intellectual  lesion,  cannot,  for 
penal  purposes,  be  considered  else  than  voluntary  passion.  It  may 
be  invoked  to  lower  the  grade  from  murder  in  the  first  to  murder 
in  the  second  degree,  by  depriving  the  intent  of  that  coolness  and 
specialty  necessary  to  make  up  the  former  offence,^  but  it  can  never 
be  the  basis  of  an  acquittal  on  the  ground  of  irresponsibility. 

'  See  supra,  §  200. 

277 


MENTAL  UNSOUNDNESS  CONSIDERED  PSYCHOLOGICALLY. 


CHAPTER  II. 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED. 


I.  Bt  Whom. 

Character  of  examination  should  de- 
pend on  character  of  subject,  §  338. 

Legal  and  medical  functionaries  should 
act  in  common,  §  339. 

In  this  way  greater  certainty  is  reached, 
§  340. 

II.  At  what  time  Examinations  should 

BE  MADE. 

Examinations  may  be  made  at  different 
times,  §  341. 

1.  At  the  commission  of  the  deed,  § 
342. 

2.  During  the  trial,  §  343. 

3.  After  sentence  pronounced,  §  344 

III.  By  what  Tests. 

1.  Physiognomy. 

General  appearance  to  be  noticed,  §  345. 

Also  expression  of  eye  and  nostrils,  § 

346. 
Color  and  condition  of  skin,  §  346  a. 

2.  Physical  conditions. 
Somatic  conditions  often  important,  § 
347. 

(a)  Injuries  to  brain. 

Insanity  not  a  necessary  sequence  of 

disease,  §  348. 
Brain  disease  may  develop  rapidly,  § 

349. 
Or  slowly,  in  different  cases,  §  350. 

(b)  Anomalies  of  sensibility,  of  pulse,  of 
secretion,  and  o/"  senses. 

General  health  to  be  considered,  §  352. 
Anomalies  in  other  parts  of  body  of 
great  value,  §  353. 

278 


Insanity  with  physical  disorganization, 
§354. 

Range  of  sensibility  in  the  insane,  § 
355. 

Instances  of  want  of  sensibility,  §  357. 

Insensibility  to  cold  a  frequent  symp- 
tom, §  358. 

Other  physical  tests,  §  358  a. 

The  secretions  a  test,  but  the  pulse  not, 
§  359. 

Abnormities  of  the  sensorial  system 
most  interesting,  §  360. 

Change  in  moral  disposition  not  unu- 
sual, §  361.  * 

3.  Hereditary  tendency. 
(a)   Psychologically. 

Descent  of  insanity,  though  not  uni- 
versal, follows  ascertainable  rules, 
§  362. 

Symptoms  of  hereditary  insanity,  §  363. 

Insanity  often  hereditary,  §  364. 

Renaudin's  exposition,  §  366. 

Crime  hereditary,  §  367. 

Nervous  diseases  may  transmit  mental 
derangement,  §  368. 

Excesses  of  parents  often  the  cause  of 
idiocy,  §  369. 

Case  of  hereditary  criminal  propensity, 
§  371. 

But  such  hereditary  propensity  without 
insanity  no  defence,  §  372. 
(i)  Legally. 

Legally,  evidence  of  hereditary  insanity 
admissible,  §  373. 

So  in  England,  §  374. 

Evidence  may  be  given  of  insanity  of 
collateral  relations,  §  375. 


HOW   MENTAL   UNSOUNDNESS   IS   TO   BE   DETECTED.       [§  338. 


It  need  not  be  notorious,  §  376. 
Insanity  of  relatives  no  defence,  per  se, 
§377. 

4,   Conversation  and  deportment. 

Insanity  often  difficult  to  detect  from 
deportment,  §  378. 

Often  only  detected  by  outside  circum- 
stances, §  379. 

Insanity  sometimes  only  apparent  on 
one  topic,  §  380. 

Or  entirely  concealed,  §  381. 

Instances  of  craftiness  in  lunatics,  §  382. 

Cunning  may  be  forerunner  of  insanity, 
§  384. 

But  sooner  or  later  detected,  §  385. 

5.    Writings. 
The  correspondence  of   the   insane   a 

valuable  test,  §  386. 
Style  and  handwriting  tests  as  well  as 

contents,  §  387. 

6.  Prior  history. 
All  prior  history  is  admissible  evidence, 

§  388. 

7.  Nature  of  act. 

(a)   Its  insensibility. 
Insanity  may  often  be  detected  by  in- 

sibility  of  act,  §  389. 
But  maniacs  are  often  consistent  and 

criminals  irrational,  §  389  6. 

(&)  Its  incongruity  with  antecedents. 
This  often  proper  to  consider,  §  390. 
Knowledge  of  past  history  necessary, 

§391. 


Sanity  in  one  man  might  be  insanity 

in  another,  §  392. 
Insane  act  either  isolated  or  one  of  a 

sequence,  §  393. 
Isolated  and  abnormal  acts  possible, 

§394. 
No  disease  necessarily  a  cause  of  moral 

acts,  §  395. 
Insane  acts  generally  done  openly  and 

avowedly,  §  396. 
Insanity  often  changes  character,  §  397. 

(c)  Its  motivelessness. 
Apparent  absence  of  motive  not  a  proof 

of  insanity,  §  399. 
Suggestions  for  study  of  motive,  §  400. 

1.  Motive  rarely  simple,  §  401. 

2.  Instinctive  passion  responsible,  § 
403. 

3.  Wickedness  not  motiveless,  §  404. 
Yet  there  may  be  a  legally  motiveless 

act,  §  405. 

(c?)  Neglect  to  escape. 
Pre-arranged    subterfuge    not    always 

proof  of  sanity,  §  406. 
Skill  in  concealing  delusions   proves 

little,  §  407. 
Innocence  not  shown  by  absence  of  pre- 
arranged subterfuge,  §  408. 
Attempts  at  escape  after  occurrence  no 

proof  of  sanity,  §  409. 

(e)  Forgetfulness  as  to  act. 
Subsequent    forgetfulness     as    to    act 

raises  presumption  of  insanity,  §  410. 
But  such  a  defence  open  to  suspicion,  § 

411. 


I.    BY  WHOM. 

§  338.  The  law  with  regard  to  the  admissibility  both  of  experts 
and  of  non-experts,  and  to  the  weight  to  be  attached  to 
their  testimony,  has  been  already  stated."^  It  is  well  to 
keep  in  mind  the  suggestions  of  HofFbauer  in  regard  to 
the  importance  of  adaptation,  by  the  expert,  of  examina- 
tion to  character.  The  uneducated  and  the  refined,  the 
bashful,  timid,  and  retiring,  and  the  cunning,  insolent,  and  hardened, 


Character 
of  exami- 
nation 
should  de- 
pend on 
character 
of  subject. 


Supra,  §§  272-282,  294-300. 


279 


§  339.]      MENTAL   UNSOUNDNESS  CONSIDERED   PSYCHOLOGICALLY. 

the  eccentric,  the  rictim  of  fixed  ideas,  and  the  lunatic,  each  requires 
a  different  style  of  treatment.  The  physician  must  reach  the  heart 
of  the  ignorant  man  by  reference  to  objects  palpable  to  the  sense, 
and  must  address  the  man  of  education  in  the  spirit  "which  animates 
him.  He  must  approach  the  bashful,  the  timid,  and  the  morose 
with  cordiality  and  affability,  and  exercise  practical  tact,  circum- 
spection, and  adroitness  in  conversation  ■vyith  the  cunning,  the  har- 
dened, and  the  insolent,  impressing  them  with  respect  for  his  per- 
sonal and  mental  qualifications.  On  the  whole,  the  tone  of  the 
subject  must  regulate  the  tone  of  the  examiner.  But,  where  one 
style  of  treatment  is  found  of  no  avail,  recourse  must  be  had  to 
the  opposite  one.  Where  the  patient  sits  immovable  as  a  statue, 
without  answering  any  question  addressed  him,  which  often  occurs 
in  cases  of  deeply-seated  melancholy,  further  questions  should  not 
be  asked,  but  observation  alone  resorted  to.^ 

§  339.  That  a  man  is  of  sound  mind,  will  generally  be  suiEciently 
manifest  to  a  prosecuting  officer  of  discretion ;  but  whe- 
nTedlcaf  ^^^^  ^  ^^^  ^s  really  or  only  apparently  deranged,  is  a' 
^rkf^shouid  ^[uestion  which  cannot  be  decided  with  the  certainty 
act  in  com-  belonging  to  science  except  by  a  physician ;  nor  is  it 
possible,  without  a  knowledge  of  psychological  medicine, 
to  pronounce  upon  the  influence  exercised  by  specific  forms  of 
disease  upon  given  actions. 

The  legal  relation  of  courts  to  experts  has  been  already  fully 
discussed.^ 

It  should  not  be  forgotten,  however,  that  it  is  of  much  importance 
in  the  diagnosis  of  insanity  that  the  proper  legal  and  medical  func- 
tionaries should  act  in  common.  Written  explanations  are  here  of 
much  less  value  tlian  oral  intercourse,  where  a  few  words  will  often 
suffice  to  remove  a  difficulty,  to  correct  an  error,  or  to  supply  an 
omission.  In  visiting  a  deranged  culprit  for  this  purpose,  the 
prosecuting  officer  should  invite  the  physician  to  accompany  him. 
They  then  may  alternately  converse  with  the  accused,  whereby 
both  the  morbid  and  criminal  peculiarities  of  the  subject  will  be 
clearly  unfolded  to  them  both.  It  is  well  established  that  a  man 
of  unsound  mind  will  act  very  differently,  according  as  he  views 

1  J.  H.    Hoffbaur,  Die   Psycliischen         «  Supra,  §§  190-199. 
Krankheiten  in  Bezug  auf  die  Reclxts- 
pfiege,  Berlin,  31. 

280 


HOW   MENTAL    UNSOUNDNESS   IS    TO    BE   DETECTED.        [§  342. 

the  persons  before  whom  he  stands  with  fear,  respect,  or  confidence. 
It  is  sometimes  advisable  to  invite  the  physician's  attendance  at  an 
official  hearing,  where,  under  the  semblance  of  a  mere  occasional 
and  unofficial  companion,  he  may  make  a  diagnosis  the  more 
accurate  because  unsuspected. 

§  340.  It  is  not  to  be  denied  that  a  lay  observer,  or  an  unassisted 
judge  or  jury,  may  be  able  to  distinguish  a  case  of  fully 
developed  and  clearly  manifested  insanity  ;  but,  aside  greater  ^^^ 
from  the  necessity  of  a  knowledge  of  all  the  particular  certainty  is 
relations  existing  between  a  given  state  of  disease  and  a 
given  act,  it  is  important  that  in  all  legal  investigations  the  highest 
degree  of  certainty  should  be  secured. 

The  admissibility  of  non-experts,  as  a  matter  of  law,  is  examined 
under  a  previous  head.^ 

TI.    AT  "WHAT  TIME  EXAMINATIONS  SHOULD  BE  MADE. 

§  341.  There  are  three  diiferent  times  in  which  the  conduct  of 
the  accused  may  become    the    subject  of  a   forensico-   ^ 

•^      _        _  *^  _     ^  Examina- 

psychological  investigation:    1,  at  the  commission  of  the   tions  may 

deed ;  2,  during  the  trial ;  and,  3,  after  sentence  pro-   different 

nounced.     At  each  of  these  periods,  the  court  has  a  sep-   *^'^'^^- 

arate  point  of  view  from  which  to  regard  the  state  of  mind  of  the 

defendant,  in  each  the  purpose  of  the  inquiry  is  different,  and  in 

each  the  interrogations  to  be  directed  to  the  physician  must  be 

modified  accordingly. ^ 

§  342.  In  regard  to  the  first  point,  the  issues  to  be  met  by  the 

physician  should  be,  in  general,  whether  a  diseased  men-   -^  At  the 

tal  state  attended  the  commission  of  the  act,  wherein  the  commission 
T  •        -I  i»ii  IT  of  tlie  deed. 

disease  consisted,  and  whether  the  mental  and  moral 
functions  exercised  and  implicated  in  the  perpetration  were  of  such 
a  nature  that  either,  a,  there  was  no  consciousness  of  criminality 
and  no  freedom  of  volition,  or,  b,  the  possibility  of  such  conscious- 
ness and  spontaneity  was  excluded,  or,  c,  both  the  one  and  the 
other  were  incapable  of  ascertainment  and  must  be  left  in  doubt. 
The  practice  which  has  lately  grown  up,  of  interrogating  as  to  a 
conclusion  of  law  {e.  g.,  was  the  defendant  capable  of  distinguishing 

J  Supra,  §§  272-275.  «  See     Scliiirmayer,    §    51G,    whose 

views  are  here  adopted. 

281 


§  344.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

right  from  wrong,  or  was  he  a  free  agent),  instead  of  as  to  a  state 
of  facts  (e.  g.,  was  he  laboring  under  mental  disease,  and,  if  so, 
what),  is  not  only  false  in  theory,  but  pernicious  in  result.  No 
expert  can  be  viewed  as  satisfactorily  performing  his  office  in  this 
respect,  who  neglects  to  familiarize  himself  with  the  patient's  prior 
history.^ 

§  343.  The  second  period  of  time  becomes  of  particular  interest 
2.  During  ^^  those  of  our  American  jurisdictions  in  which,  when 
the  trial.  ^  party  alleged  to  be  insane  is  put  on  his  trial,  the  jury 
are  specially  sworn  to  determine  the  preliminary  issue  whether 
the  defendant  be  insane  at  the  time  of  trial.  If  the  fact  be  found 
in  his  favor,  he  is  confined  under  special  sanctions.  If  otherwise, 
the  trial  proceeds  on  the  main  issue. 

§  344.  The  third  period  of  time,  at  which  the  state  of  a  culprit's 
g    .  mind  is  open  to  medical  investigation,  is  after  the  close 

sentence  of  the  trial,  and  before  the  execution  of  the  sentence. 
A  man  of  unsound  mind  is  incapable  of  understanding 
the  justice  of  his  sentence,  or  of  recognizing  a  punishment  in  the 
evil  inflicted  upon  him.  In  many  cases  also  the  evil  will  aggravate 
his  disease.  For  all  these  reasons  it  is  necessary  to  be  certain  that 
a  convict  is  so  far  in  the  possession  of  all  his  faculties,  that  the 
object  of  the  law  in  subjecting  him  to  punishment  will  be  answered. 
The  interrogations  to  be  submitted  to  the  physician  are  to  be  framed 
upon  this  simple  principle  ;  and  it  is  self-evident  that  only  such 
derangements  will  here  come  in  question  as  are  clearly  manifest, 
and  as  clearly  exclude  the  possibility  of  the  prisoner's  understand- 
ing the  reason  of  his  punishment. 

It  would  be  a  proper  regulation  to  cause  every  convict,  before 
undergoing  his  punishment,  to  be  examined  in  body  and  mind  by 
the  physician,  for  the  purpose  of  ascertaining  his  capacity  for  the 
ordeal.  Even  where  the  general  fitness  of  the  subject  is  undoubted, 
there  are  frequently  personal  defects  which  require  attention  in  the 
treatment  of  the  prisoner  during  confinement.  In  several  of  the 
German  states  this  precaution  is  observed,  and  where  a  convict  is 
found  to  be  insane,  he  must  be  subjected  to  the  proper  treatment. 
If  a  cure  is  effected,  the  question  whether  he  is  now  able  to  sustain 
the  punishment  without  danger  of  relapse  or  other  injury,  is  to  be 

»  See  infra,  §  391. 
282 


HOW    MENTAL    UNSOUNDNESS   IS    TO    BE   DETECTED.       [§  346. 

decided  by  the  forensic  physician,  upon  a  careful  investigation  of 
all  the  symptoms  and  attendant  circumstances. 

III.    BY  WHAT  TESTS. 

1.  Physiognomy.^ 

§  345.  The  general  questions  in  relation  to  feigned  insanity  are 
noticed  under  a  subsequent  head.^ 

"  Close  attention,"  says  Schurmayer,^  "  should  be  first  directed 
to  the  entire  exterior  of  the  subject,  his  posture,  his    General  ap- 

motions,  his  gestures,  his  eye,  his  words,  his  intonation,   pearance  to 
'  =>  '  ''    '  be  noticed. 

and,  above  all,  the  first  impression  produced  upon  his 

mind  by  the  appearance  of  the  physician.  What  most  distinctly 
characterizes  a  mental  disease,  and  is  never  misunderstood  by  a 
skilful  physician,  is  the  physiognomy  of  such  a  patient.  .  The  eye 
of  a  madman  is  the  mirror  of  his  soul.  He  lacks  the  calm  unob- 
structed gaze  peculiar  to  the  sane,  untouched  by  passion  or  excite- 
ment." "Look,"  says  Heinroth,*  "upon  the  cunning  leer  of  a 
lunatic,  the  savage  glare  of  a  maniac,  the  lack-lustre  eyes  of  a 
splenetic,  or  the  meaningless  stare  of  an  imbecile  ;  such  things  can- 
not be  counterfeited."' 

The  form  of  the  sJcidl  is  often  peculiar  in  every  description  of 
mental  disease,  but  is  particularly  noticeable  in  the  case  of  cretins 
and  natural  fools. 

§  346.  The  expressions  of  the  eye^  and  of  the  nose^  have  been 

1  See  infra,  §  450.     The  features  of  3  Gericlitliche  Medicin,  §  529. 

the  face,  says  Falret,  change  at  each  *  System  der  gerichtlich  psychisch en 

instant  or  constantly  preserve  the  same  Medizin,  p.  343.      See  article  by  Dr. 

expression  ;  the  lips,  the  cheeks,  the  Laurent,  translated  in  20  Am.  Journ. 

nostrils,  the  eyebrows,  the  eyelids,  fre-  of  Ins.  216. 

quently  show   convulsive  movement ;  ^  Drawings,  very  well  executed,  are 

it  is  the  same  with  regard  to  the  mus-  to  he  found  in  Morrison's  Outlines  of 

cles  of  the  eye,  and  under  the  influ-  Mental  Diseases,  London,  1829,  and  in 

ence  of  these  convulsions,  the  look  is  Esquirol,  Des  Maladies  Mentales,    Paris, 

troubled,   bewildered,    and  unsteady.  1838. 

Lemons  Cliniques  sur  I'Alienation  Men-  ^  Loebels,  Grundriss  der  Semiologie 

tale,  M.  Falret,  huitieme  le9on,  p.  219.  des  Auges.     Jena,  1817,  p.  27. 

Paris,  1854 ;  see  also  Orfila,  Med.  Leg.  ^    Hoefling,    in    Casper's     Woclien- 

i.  p.  379.     Paris,  1848.  schrift,  1834. 


2  Infra,  §§  443-460. 


283 


§  346  a.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

Also  ex-  very  capably  exhibited  by  two  eminent  physiognomists. 
eyeTud°  ^^e  latter  feature  has  been  examined  with  peculiar 
nostrils.  ability  by  Hoefling.^  "  In  the  apparently  joyous  coun- 
tenance of  a  laughing  madman,"  he  tells  us,  "the  upward  trac- 
tion of  the  sides  of  the  nose,  nevertheless,  indicate  unmistakably 
the  presence  of  pain,  and  this  expresses  much  of  the  physiognomic 
peculiarity  of  such  unfortunates.^  In  like  manner  the  simple  un- 
meaning smile  of  imbecility  is  marked  by  the  form  and  shape  of  the 
nose,  which,  with  its  downward,  circular  openings,  and  the  tension 
of  the  skin  on  the  peak,  expresses  a  torpor,  while  in  the  laugh  of  a 
sane  man  the  notrils  contract,  and  become  elongated,  without  a  de- 
parture of  the  septum  from  its  horizontal  position."  The  mouth  of 
the  simpleton  twitches  with  a  constant  unmeaning  smile,  accom- 
panied with  a  low,  inarticulate  and  thoughtless  mumble,  and  the 
imbecile  is  almost  always  found,  sitting  or  standing,  with  parted 
lips.^  "  With  many,"  says  Schiirmayer,  "  the  mouth  is  constantly 
in  motion,  as  if  they  were  talking  to  themselves.  In  the  paroxysms 
of  mania  there  is  a  convulsive  distortion  or  contraction  of  the  mouth. 
Receptivity  for  certain  external  impressions  is  generally  low,  par- 
ticularly in  the  case  of  impressions  accompanied  with  pain,^  of  cold, 
heat,  and  certain  medicines." 

§  346  a.  "The  condition  and  color  of  the  skin,"  says  Dr.  Laurent, 
"  have    great   value   in   the    eyes    of   the    alienist   physician.      I 

'  Ibid.  yellow  tinctured  with  sallowness,  with.- 

2  "  To  represent  the  prevailing  cliar-  out  one  spot  of  enlivening  carnation; 
acter  and  physiognomy  of  a  madman,  the  hair  sooty  black,  stiif,  and  bushy, 
the  body  should  be  strong  and  the  or  of  a  pale,  sickly  yellow,  with  wiry 
muscles  rigid  and  distinct,  the  skin  hair." — Anatomy  of  Expression.  Sir 
bound,   the    features    sharp,   the   eye  Charles  Bell,  London,  1844. 

sunk ;   the  color  of  a  dark  brownish- 

"  His  burning  eye,  whom  bloody  strokes  did  stain, 
Stared  full  wide  and  threw  forth  sparks  of  fire  ; 
And  more  for  rank  despight  than  for  great  pain, 
Shaked  his  long  locks,  colored  like  copper  wire. 
And  bit  his  tawny  beard  to  show  his  raging  ire." 

Faery  Queen,  Book  ii.,  canto  4,  v.  15. 

3  Danz,  Allgemeine  Medizinische  der  Allgemeine's  Pathologie  der  psy- 
Zeichenlehre.  Heinroth's  edition,  chischen  Krankheiten.  Erlangen, 
Leipsic,  1812,  p.  353.  1839,  p.  121. 

*   Compare     Friedreich,     Handbuch 

284 


HOW    MENTAL    UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  346a. 

think  it  riffht  expressly  to  insist  on  the  symptoms  fur-    Color  and 

^,  .  T  ,  .       ■,  •  condition 

nished  by  this  organ.  I  have  noticed  some  very  curious  of  skin, 
morbid  phenomena.  Professor  Trousseau  has  specified  in 
his  clinical  lectures  some  very  important  peculiarities  in  the  functions 
of  the  skin  manifesting  themselves  during  head  affections.  After  the 
example  of  this  learned  man,  I  must  insist  on  this  point.  Color 
furnishes  signs  well  worthy  attention.  The  skin  of  the  face — and 
it  is  of  this  part  alone  I  speak — may  be  dry  and  arid,  the  seat  of 
herpetic  scurvy  and  scaly  eruptions,  or  may  be  moist  with  perspira- 
tion, or  a  liquid  secretion  of  a  more  or  less  oily  nature  and  of  varia- 
ble odor.  Its  color  is  susceptible  of  numerous  general  or  partial 
modifications.  It  may  be  pale.  This  pallor  has  divers  shades,  from 
pure  white  to  the  slightly  yellow  tinge  (compared  to  that  of  straw 
or  wax),  or  earthy  brown,  and  bronzed.  It  may  be  of  every  shade 
of  red,  from  rosy  to  vermilion,  violet  and  purple.  But  season  and 
exposure  to  the  sun's  rays  should  always  be  taken  into  consideration. 
The  skin  may  have  a  greater  or  less  tonicity,  and  the  subcutaneous, 
subcellular  tissue  be  more  or  less  elastic.  It  also  is  marked  by 
lines  and  furrows,  which  are  of  importance  as  indicating  the  amount 
of  activity  of  the  subjacent  muscles.  At  first,  during  infancy  and 
adolescence,  few  in  number,  their  formation  becomes  fecund  in  pro- 
portion as  age  advances,  which  must  be  attributed  to  the  thinning 
of  the  face  or  the  loss  of  the  mobile  parts  by  age,  sickness,  passion, 
and  deep  emotion  of  the  soul.  I  think  it  unnecessary  to  describe 
these  furrows,  which  may  assume  different  forms — horizontal,  verti- 
cal, oblique,  sinuous,  and  more  or  less  close  or  parallel. 

"  The  organ  of  sight  offers  for  consideration  its  form,  movements, 
and  expression.  The  eyes  may  be  more  or  less  prominent  or  de- 
pressed in  the  orbit ;  the  aperture  between  the  lids  smaller  or 
greater ;  the  sclerotic,  very  apparent  around  the  pupil,  exhibits  a 
variable  blush,  yellowish  or  red  tinge  ;  the  dilatation  of  the  vessels 
very  evident.  Little  livid  or  black  veins  may  be  perceived  on  it. 
The  conjunctival  surface  may  be  dry,  humid,  or  moistened  with  tears ; 
the  pupils  may  be  deformed  by  being  equally  or  unequally  dilated  or 
contracted.  Strabismus  may  be  observed  ;  a  distortion  of  the  eyes 
by  which  they  look  crosswise,  either  above,  below,  or  to  the  side, 
twisting  even  during  sleep.  In  the  normal  state  the  ocular  globe 
is  susceptible,  under  the  influence  of  the  will,  of  numberless  motions 
in  every  sense,  and  these  motions  may  have  a  longer  or  shorter 

285 


§  346  a.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

duration ;  but  in  the  morbid  state,  and  without  their  owner's  con- 
trol, a  sort  of  trembling,  oscillation,  or  vacillation  of  the  globe  may 
be  manifested,  a  kind  of  continual  or  permanent  convulsion,  in  con- 
sequence of  which,  most  frequently,  little  lateral,  sometimes,  though 
rarely,  up  and  down,  movements  are  given  to  the  globe  of  the  eye. 

"  The  expression  of  the  eye  calls  for  special  attention.  The  eyes 
are  sometimes  lively  and  brilliant,  sometimes  sad  and  glazed. 
Often  they  have  a  soft,  dreaming  look,  expressive  of  vacuity, 
uncertainty,  or  nonchalant  calmness ;  at  other  times  they  become 
animated  from  the  slightest  cause,  have  a  lightning  glance,  are 
haggard,  insolent,  full  of  audacity,  fixed,  and  inquisitive.  Each  of 
these  expressions  has  a  different  intensity  and  duration,  and  re- 
sponds to  very  different  situations. 

"  In  accordance  with  the  protrusion  or  sinking  of  the  globe  of 
the  eye,  the  eyelids  take  shape — they  are  swollen  or  oedematous  ; 
have  at  times  a  very  pallid  color,  at  others  become  red  or  blue  ; 
and  exhibit  wrinkles  of  diverse  shape  and  in  variable  number. 
They  may  likewise  be  agitated  by  convulsion,  or  show  a  very 
significant  immobility.  Each  lid  may  differ  in  the  length  and 
abundance  of  its  lashes  ;  the  ciliary  margin  may  be  the  seat  of 
inflammation  due  to  nervous  excitation.  Occasionally  the  eyebrows 
are  of  fantastic  shape.  Sometimes  little  noticeable,  sometimes 
strongly  marked,  they  stand  up  on  the  forehead,  or  fall  back  on 
the  eyes,  curling  after  the  style  of  moustaches.  The  shape  of  the 
nose  has  a  pathological  signification  which  should  not  be  passed 
over  in  silence.  Besides  the  color  and  swelling  or  thinness  of  the 
fleshy  parts  of  the  proboscis,  a  careful  examination  should  be  made 
of  the  more  or  less  easy  dilatation  of  the  nostrils,  their  mobility  or 
fixedness,  the  tension  or  the  retraction  of  their  walls.  Dr.  Hoefling 
attaches  much  more  importance  to  the  signs  furnished  by  the  nose 
than  to  those  given  by  the  eye.  The  mouth  presents  for  examina- 
tion the  state  of  the  lips,  with  their  relative  situation  during  repose, 
their  volume,  color,  dryness,  or  humidity.  The  motion  of  the 
mouth  has  a  very  important  signification,  and  leads  to  a  notable 
modification  of  the  commissure  of  the  lips.  Permanent  contractions, 
alternations  of  tension  or  relaxation,  partial  or  general  tremor,  the 
diverse  forms  of  spasm,  deserve  much  attention.  These  manifesta- 
tions have  a  very  decided  meaning. 

"  What  we  have  just  said  relative  to  the  motion  of  the  mouth 
286 


HOW   MENTAL   UNSOUNDNESS   IS   TO   BE   DETECTED.      [§  348. 

and  lips  is  applicable  to  all  the  locomotive  system  of  the  face. 
Tension  or  relaxation,  continual  or  alternate  movements,  immo- 
bility, may  appear  in  various  grades  in  each  of  the  facial  muscles. 
To  facial  symptomatology  must  be  added  also  an  examination  of  the 
parotid  and  auricular  regions.  We  should  carefully  note  the  pallor, 
redness,  and  swelling  of  the  cheeks,  the  color,  swelling,  mobility, 
or  immobility  of  the  ears,  as  well  as  the  appearance  of  sanguineous 
tumors  of  the  auricle. 

"  Dr.  Morel  attaches  much  importance  to  the  way  in  which  the 
ears  are  fixed,  and  makes  this  one  of  the  characteristic  signs  of  his 
types  of  degeneracy. 

"  It  is  of  some  importance  to  let  this  physiognomical  survey  em- 
brace the  carriage  of  the  head,  which  is  often  noticed  to  be  variable, 
according  as  the  individual  has  a  more  or  less  favorable  opinion  of 
his  personality,  and  from  numerous  other  causes."^ 

2.  Physioal  conditions. 
§  347.  Somatic  conditions,  as  has  been  seen,^  though  not  neces- 
sary to  prove  insanity,  as  insanity  may  exist  when  the 
bodily  functions  are  in   undisturbed   health,  are   often   conditions 
important  tests  of  an  insane  state,  and  the  more  so  be-    por*t°nr' 
cause  they  cannot  be  readily  feigned.      Among  these 
conditions  may  be  again  enumerated  disturbances   of  the  motor 
spheres,  of  the  vegetative  organs,  of  sleep,  of  the  pulse,  and  the 
peculiar  condition  of  the  evacuations,  e.  g.^  increased  phosphate  in 
the  urine.     Sleeplessness  is  a  condition  which  it  is  peculiarly  diffi- 
cult to  simulate. 

(a)  Injuries  to  brain. 
§  348.   Science,  says  Dr.  Liman,'  whose  judicious  observations 
have  already  been  frequently  cited,  teaches  that  mental   iQgaujty 
disease  is  not  an  abstract  entity,  but  is  conditioned  by   notaneces- 
brainular  and  nervous  disease,  by  which  psychical  func-   quence  of 
tional  disturbances  are  generated  which  are  subordinated     ^^^^^  ' 
to  the  laws  of  the  physical  disorder.     The  brain  may  be  idiopathi- 
cally  diseased,  or  the  aflfection  may  be  sympathetic.    Under  favoring 

*  Am.  Joiirn.  of  Ins.,  October,  1863.         *  Liman's   Casper,   Berlin,  1871,  p. 
2  Supra,  §  329.     See   an  article  in    434. 
18  Journ.  Ment.  Sci.  390. 

287 


§  349.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

circumstances,  this  sympathethic  brainular  action  may  be  produced 
by  every  form  of  disease  (e.  g.,  typhus,  cholera,  exanthematic 
fever,  pneumonia,  erysipelas,  acute  rheumatism,  abdominal  and 
genital  diseases,  heart  disease,  tubercular  affections)  as  well  as  by 
those  physiological  causes  which  are  generally  specified  in  the 
books,  viz.,  puberty,  the  menses,  pregnancy,  delivery,  lactation, 
involution,  old  age,  and  by  psychical  causes,  such  as  passion,  mental 
shocks,  etc.  Experience,  however,  teaches  that  nervous  diseases, 
superinduced  on  a  favoring  psychopathical  disposition,  not  only  are 
of  peculiar  moment  in  inducing  mental  disorder,  but  form  a  basis  of 
experience  on  which  rests  the  setiological  classification  of  psychical 
disease.  But  it  is  nevertheless  important  to  recollect  that  while 
these  physical  and  nervous  disorders  serve  to  explain  the  nature 
and  strengthen  the  proof  of  insantity  otherwise  substantively  proved, 
they  do  not  as  a  necessary  sequence  prove  insanity,  and  frequently 
exist  without  it.  To  this  it  may  be  added  that  this  doctrine  of 
necessary  sequence  in  such  cases  is  fraught  with  several  deleterious 
results.  First,  its  acceptance  would  be  cruel  to  the  persons  labor- 
ing with  the  physical  and  nervous  complaints  in  question,  for,  if  not 
leading  to  their  sequestration  from  society  as  persons  non  compotes 
mentis,  it  would  deprive  them  of  the  power  of  business  self-support. 
No  one  could  enter  into  contracts  with  them :  no  one  could  take 
business  paper  executed  by  them :  no  one  could  treat  them  as 
vested  even  with  that  testamentary  power  which,  as  has  already 
been  seen,  forms  one  of  the  few  means  of  insuring  respect  retained 
by  the  aged  and  forlorn.  And,  secondly,  such  persons  would  form 
a  dangerous  aristocracy,  exempt  from  the  operation  of  penal  laws. 
Insanity  being  a  material  and  necessary  result  of  disease,  if  dis- 
eased, they  would  not  be  penally  responsible  for  crime. ^ 

§  349.  Brain  disease. often  displays  itself  in  moral  and  mental 

transitions  which  are  not  only  conspicuous  and  startling, 

faTe™n?ay      l^^t   comparatively  rapid  and    complete.       Sometimes, 

develop  however,  the  causes  work  more  slowly.  There  is  no  im- 
rapidly.  '  ,  •' 

mediate  and  complete  revolution  of  character  ;  but  there 

is  a  gradual  protrusion  of  some  specific  peculiarities  and  depression 

of  others.     The  first  change  may  be  likened  to  a  great  terrestrial 

catastrophe,  a  cataclysm  by  which  the  whole  face   of  nature  is 

'  See  supra,  §  336. 

288 


HOW   MENTAL    UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  351. 

changed  :  the  second  to  the  process  of  transformation  produced  by 
the  gradual  rising  of  the  sea,  by  which  valleys  are  filled  up  and 
mountains  depressed.  Sometimes  the  process  of  transformation,  in 
the  second  case,  is  very  slow,  and  yet,  nevertheless,  is  distinctly 
traceable  to  physical  causes.  "  The  patient,"  says  Krafft-Ebing 
(1872)/  a  very  high  authority  in  psychological  medicine,  "  becomes 
(after  injuries  or  shocks  to  the  brain)  excitable,  violent,  brutal,  quar- 
relsome, prone  to  excesses  in  haccJw  et  venere,  and  approaches  to 
the  ideal  of  a  maniacal  moral  insanity.  By  many,  particularly  in 
those  in  whom  delirium  subsequently  breaks  out,  a  qualified  maniacal 
exaltation  shows  itself  in  the  form  of  unsteadiness,  of  passion  for 
travel,  of  inclination  to  a  vagabond  life.  These  are  generally  the 
antecedents  of  mania,  which  begin  the  process  of  psychical  anoma- 
lies ;  more  rarely,  but  especially  in  those  cases  which  terminate  in 
paralysis,  the  prodromal  symptoms  consist  in  brainular  exhaustion, 
and  express  themselves  progressively  in  weakness  of  memory,  dul- 
ness,  apathy,  decrease  of  self-determining  power." 

§  350.  The  psychical  effects,  however,  as  has  been  just  noticed, 
may  be  very  slow.  Years  may  elapse  from  the  time  of 
the  injury  before  the  shock  displays  its  psychical  conse-  in  dififerent 
quences.  Griesinger  throws  out  several  very  interesting 
hypotheses  as  to  the  slow  processes  by  which  a  little  apoplectic  cyst, 
or  an  ulcer,  may  work  into  the  soft  substances  of  the  brain,  until 
suddenly  occurs  insanity  or  death.  Yet  there  is  great  reason  for 
caution  when  adducing  such  prior  stages  as  confirmatory  of  insan- 
ity. Often,  when  insanity  is  sought  to  be  proved,  a  scar  on  the 
head  is  put  in  evidence.  Yet  the  cases  are  numberless  in  which, 
particularly  in  infancy,  injuries  to  the  skull  have  been  sustained, 
and  even  severe  wounds  inflicted,  without  the  mind  being  subse- 
quently disabled. 

§  351.  "The  element  of  time,"  says  Dr.  Laycock  (1871),  "is 
a  very  important  point  in  the  diagnosis  and  prognosis  of  this  class 
of  cases.  The  progressive  degeneration  may  extend  over  several 
years. 

"  In  July,  1868, 1  saw  a  captain  in  the  Royal  Navy,  who,  fifteen 
years  before,  when  a  midshipman,  fell  about  eight  feet  as  he  was 
descending  Table  Mountain,  Cape  of  Good  Hope.     He  received  a 

'  Ueber  die  Gehirn-Erschiltteruug,  etc.,  Erlangen,  1868. 

VOL.  I.— 19  289 


§  353.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

scalp  wound,  which  bled  freely,  and  he  thoucrht  he  must  have  been 
made  unconscious.  The  surgeon  of  his  ship  examined,  but  found 
no  fracture,  and  dressed  the  wound,  which  healed  well.  I  found  an 
extensive  scar  on  the  scalp,  over  the  curve  of  the  left  parietal  re- 
gion, and  the  surface  slightly  depressed.  This  had  led  some  to 
propose  trephining.  TAvelve  years  after  the  injury  he  married,  and 
shortly  after  had  habitual  headaches,  with  mental  depression,  increas- 
ing until  he  became  melancholic.  Rest  from  active  duty  restored 
him  to  comparative  health  of  both  body  and  mind,  but  his  manner 
continued  peculiar.  He,  however,  resumed  charge  of  a  ship,  and 
so  got  involved  in  harassing  and  anxious  night-duties  off  the  Irish 
coast,  watching  the  Fenians.  This  exhausting  work  induced  a 
series  of  neuroses  of  the  encephalon,  which  were  progressively  in- 
tensified into  structural  disease,  until  (when  I  saw  him)  he  was 
weak  of  mind,  incapable  of  movement,  passed  urine  and  feces  in- 
voluntarily, and  had  great  difficulty  of  articulation,  as  well  as  an 
incapacity  to  express  his  ideas  by  appropriate  words,  although  he 
easily  smiled  and  laughed.  Early  in  November  of  the  following 
year  he  had  successive  fits  of  convulsions,  became  unconscious,  and 
so  died,  sixteen  years  after  the  injury  to  the  scalp." 

(5)  Anomalies  of  sensibility,  of  pulse,  of  secretions,  and  of  senses. 

§  352.  Under  the  present  head,  it  is  proper  to  notice  the  im- 
portance of  the  attention  of  the  medical  examiner  being 
health  tobe  turned  to  temperament,  disposition,  and  age  ;  in  the  case 
considered.  ^£  females,  to  the  development  of  the  functions  of  men- 
struation, pregnancy,  delivery,  suckling  ;^  to  mental  characteristics, 
powers,  and  habits  ;  to  the  condition  in  life  and  profession  ;  to  the 
questions  of  rest  and  exercise,  sleep,  and  watching ;  to  excessive 
evacuations,  particularly  if  connected  with  sexual  gratifications  ;  to 
sexual  abstinence  ;  to  bodily  injuries,  besides  those  of  the  head,  such 
as  diseases  of  the  heart,  hemorrhoids,  obstructions  of  the  abdomen, 
and  to  cutaneous  diseases. 

§  353.  "  Symptoms  of  bodily  disease  ascertained  by 
•'^^^t^er^^^  the  state  of  the  pulse,  the  digestion,  the  secretions,  etc., 
parts  of  the   cannot  naturally,  in   any  case,  be  taken  as  proofs  of 

body  of  ,         ,.  .       ,  T  ... 

great  value   mental  disease  ;   the  diagnosis  depends  essentially  and 

'  On  tins  point  Dr.  Storer's  treatise  on  "  Insanity  in  Women"  will  be  found 
of  much  value. 

290 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  354. 

exclusively  on  the  mental  symptoms.  Nevertheless,  those  symptoms 
of  diseases  in  other  parts  may  be  of  great  value.  From  them  we 
are  enabled  to  answer  the  question,  Is  the  individual  in  a  state  of 
general  ill-health  ?  If,  from  these  symptoms,  this  can  be  said  with 
certainty — if,  on  the  one  hand,  a  striking  mental  change  is  observed, 
or  very  suspicious  behavior,  and,  on  the  other,  a  general  morbid 
state  of  the  organism  be  present — it  becomes  highly  probable  that 
both  series  of  phenomena  are  related  to  each  other,  that  is,  that  the 
mental  change  is  itself  morbid.  As,  however,  insanity  depends 
essentially  on  an  affection  of  the  brain,  there  are  none  of  all  the 
psychical  symptoms,  not  in  the  narrow  sense,  of  greater  significance 
than  certain  phenomena  of  disturbed  (irritated,  depressed,  etc.) 
cerebral  function. 

"  Therefore  anomalies  of  the  central  sensorial  function,  halucin- 
ations,  etc.,  are  of  such  extraordinary  value,  and  violent  headaches, 
sleeplessness,  fainting,  anaesthesia,  changes  in  the  pupils,  all  con- 
comitant convulsions,  and  paralyses,  are  also  of  such  great  import- 
ance, in  the  diagnosis  of  insanity. 

"  If  these  symptoms  can  be  traced  to  an  affection  of  the  brain, 
and  if  we  can,  by  these,  prove  that  at  all  events  a  cerebral  affec- 
tion is  present,  it  is  clear  that  in  few  cases  we  can  doubt  that  the 
suspected  psychical  symptoms  depend  also  upon  the  cerebral  affec- 
tion ;  at  least  the  opposite  can  seldom  or  never  be  shown.  On  the 
other  hand,  the  non-appearance  of  such  further  symptoms,  and  the 
absence  of  all  physical  disorder  (of  the  pulse,  digestion,  etc.),  can 
never  be  taken  as  proof  of  the  absence  of  a  mental  disease  (that 
is,  a  cerebral  affection  of  which  the  actual  symptoms  are  exclusively 
psychical);  we  frequently  meet  with  cases  of  undoubted  mental 
disease,  especially  chronic  cases,  in  which  the  bodily  functions  re- 
main unimpaired."^ 

§  354.  That  insanity  may  be   one  of  the   incidents  of  physical 
disorganization,  is  illustrated  by  a  case   mentioned  by 
Wigan  in  his   remarkable  work   on   the  duality  of  the    with  physi- 
mind.2    "  The  gentleman  held  a  situation  in  which  he  had   ganizaUon. 
many  younger  persons  under  him.     I  purposely  leave 
the  designation  obscure.     He  had  risen  to  the  head  of  the  office  by 

'  Griesingor's  Mental  Pathol.,  Syden.  ^  a  New  View  of  Insanity,  etc.,  by 
ed.  (1867)  §  73.  A.  L.  Wigan.     London,  1844,  p.  81. 

2yi 


§  354.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

long  and  exemplary  services.  He  was  a  widower,  and  had  a  con- 
siderable family,  all  of  whom,  however,  died  in  their  youth.  He 
exercised  a  parental  control  over  his  subordinates,  and  was  ex- 
tremely respected  by  every  one  who  knew  him.  His  salary  was 
ample,  his  excessive  benevolence  had,  however,  always  kept  him 
poor,  but,  as  his  style  of  living  did  not  imply  the  expenditure  of 
more  than  half  his  income,  he  had  the  reputation  of  wealth.  Gradu- 
ally, towards  the  age  of  sixty,  this  gentleman  became  garrulous  and 
light  in  his  conversation,  and  the  others  in  the  office  suspected  him 
to  have  been  drinking.  He  had  many  rebuffs  from  the  persons 
under  his  command,  but  this  in  no  degree  changed  the  indecorous 
levity  of  his  conversation,  which  had  formerly  been  remarkably 
dignified,  and  as  reserved  as  was  compatible  with  his  excessive 
benevolence  of  disposition.  Months  and  months  passed  on,  his  lan- 
guage became  gradually  worse,  and  at  last  was  of  the  most  depraved 
obscenity.  This  shocked  and  disgusted  his  juniors,  and  he  was 
seriously  threatened  with  exposure  by  them.  The  propensity  was 
checked  for  a  while,  but  after  repeated  offences  and  repeated  for- 
giveness by  the  young  men,  they  made  a  formal  complaint  to  his 
superiors.  The  offender  was  taken  to  task  very  seriously,  but,  as 
the  young  men  had  given  rather  a  lenient  representation  of  his  con- 
duct, he  was  permitted  one  more  trial,  with  the  assurance  that  his 
next  offence  would  be  followed  by  his  dismissal.  There  was  soon 
an  opportunity  of  putting  the  threat  in  force,  for  his  conduct  and 
conversation  became  more  and  more  gross  and  disgusting.  He  was 
dismissed.  Having  made  no  provision,  he  suddenly  found  himself 
utterly  destitute,  but  did  not  make  known  his  position.  He  packed 
a  bundle  of  necessary  clothes,  put  in  his  pocket  whatever  money 
and  trinkets  he  possessed,  and  Avandered  about  the  counti'y  w^ithout 
aim  or  object.  Every  one  lost  sight  of  him  for  two  or  three  months, 
when  he  was  found  in  a  remote  part  of  the  kingdom  literally  dead 
on  a  dungJdIl,  where  it  is  supposed  he  had  laid  himself  down  for 
warmth  ;  his  money  was  gone,  and,  from  the  state  of  the  stomach 
and  intestines,  it  is  probable  that  he  had  died  of  want  of  food  as 
the  immediate  cause,  but,  on  examining  the  interior  of  the  skull, 
there  was  found  extensive  softening  and  disorganization  of  the  left 
cerebrum,  and  the  other  was  not  free  from  disease.  He  could  not 
.      292 


HOW    MENTAL   UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  356. 

have  lived  long;  though,  under  proper  care,  the  disease  would  not 
have  heen  immediately  fatal. "^ 

§  855.  A  diminution  of  sensibility,  says  M.  Falret,^  is  not  of  com- 
mon occurrence  in  mental  diseases,  its  exaltation  being 
much  more  frequent.  It  is  proper,  however,  to  state  sensibUity 
that  deranged  persons  are  generally  as  sensible  of  tem-  ^^^^'^  ^^' 
perature  and  impressions  as  persons  ordinarily  are. 
Lesions  of  the  sensibility,  however,  are  observable  in  all  kinds  of 
insanity,  and  especially  in  those  cases  in  which  mystical  ideas  are 
predominant,  in  demonomania  and  paralytic  insanity.  General 
insensibility  has  been  known  to  take  away  from  some  madmen  the 
sense  of  their  own  existence.  M.  de  Foville  cites  the  example  of 
a  man  who  thousht  he  had  died  at  the  battle  of  Austerlitz,  at  which 
he  received  a  severe  wound.  His  insanity  consisted  in  his  inability 
to  recognize  and  feel  his  own  body.  When  any  one  inquired  after 
his  health,  it  was  customary  for  him  to  reply,  "  You  ask  me  how 
father  Lambert  is,  but  father  Lambert  is  no  more  ;  he  was  killed 
by  a  bullet  at  Austerlitz.  That  which  you  see  here  is  not  he,  but 
a  machine  which  they  have  made  to  resemble  him,  and  which  is 
very  badly  made,  so  try  and  make  another."  Never  in  speaking 
of  himself,  did  he  say  "  me"  (moi),  but  "  that"  (cela).  This  man 
fell  several  times  into  a  complete  state  of  immobility  and  insensi- 
bility, which  lasted  several  days.  Sinapisms  and  blisters  applied 
to  guard  against  these  accidents  never  produced  the  least  symptom 
of  pain.  He  often  refused  to  eat,  saying,  "  9a  n'avait  point  de 
ventre." 

Esquirol  was  unable  to  discover  any  sign  of  pain  in  passing  a  pin 
through  the  skin  of  the  arm  of  a  demonomaniac,  who  asserted  that 
he  no  longer  felt  anything,  and  who  imagined  that  his  body  had 
been  carried  away  by  the  devil. 

§  356,  "  Diminution  or  complete  suppression  of  the  sensibility  of 
the  skin  to  impressions  of  temperature  and  of  pain  is  by  no  means 

'  Generally,  of  all  the  causes  of  men-  always  to  be  found  in  these  alterations, 

tal  alienation,  the  most  frequent,  with-  — .7.  Briand,  Med.  Leg.,  p.  544.    Paris, 

out   doubt,  are  cerebral    affections   or  1852. 

some     alteration     of    the     encephalic  2  Lecjons   Cliniques    de    I'Alienation 

organ,  and   perhaps  we  should    agree  Mentale,    par    M.    Falret.       Septiemo 

with  Haslam  in  saying,  that  the  primi-  le(,"0n,  p.  185,  Paris,  1854. 
tive  cause   of  mental   derangement  is 

293 


§  357.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

frequent,  still  less  is  it  general  in  insanity.  We  find,  on  the  con- 
trary, in  some  instances  an  excess  of  sensibility  to  pain  (Esquirol 
relates  such  a  case),  and  it  is  remarked  that  in  asylums  in  winter 
the  patients,  with  very  few  exceptions,  constantly  seek  the  warmth. 
Nevertheless,  cases  of  transient  and  persistent  cutaneous  anaesthesia 
(as  already  shown  in  the  foregoing),  and  of  analgesia,  are  some- 
times seen,  particularly  in  states  of  melancholia  and  dementia,  and, 
confined  to  more  local  limits,  it  is  also  frequent  in  hysteria.  A 
careful  investigation  of  the  cutaneous  sensibility  in  the  various  parts 
of  the  body  should  always  be  made."^ 

§357.  "Rochoux  (sitting  of  the  Academic  de  Medecine,  22d 
^  December,  1840)  communicated  a  case  of  accident  which 

Instances  01  '  ^  .         .  . 

want  of        occurred  through  want  of  sensation  m  the  patient.     A 

patient  in  Bic^tre,  while  no  one  was  in  the  room,  laid  his 

head  on  the  red-hot  iron  of  the  stove,  and  put  his  arm  into  the  midst 

of  the  fire.       The  strong  smell  first  drew  the  people  near ;    the 

patient  was  quite  unconcerned,  and  throughout  gave  no  sign  of 

pain,  though  the  arm  was  burned  to  the  bone. 

"  In  the  '  Zeitschrift  fur  Psychiatric, '^  there  is  an  example  of 
voluntary  self-burning  by  a  melancholic  patient.  He  was  quite 
happy,  although  legs,  thigh,  and  nates  were  burned,  so  that  even 
the  bones  were  charred. 

"  A  patient  in  Bedlam,  mentioned  by  Morison,  laid  the  back  of 
his  head  upon  the  fire  till  the  quarter  part  of  the  cerebral  coverings 
were  burned  ;  he,  however,  recovered. 

"  Mich^a^  cites  a  number  of  cases  in  Avhich  melancholies  suffered 
mutilation  without  pain  (analgesia),  and  it  is  interesting  that  this 
state  often  exists  also  in  delirium  trauraaticum  (nervosum),  so  that 
the  patients  tear  ofi"  the  bandages,  and  use  most  regardlessly  the 
broken  limbs  (Dupuytren,  Klose). 

"  Snell,*  in  180  patients,  found  the  skin  quite  anaesthetic  in  18(?), 
and  in  6  there  was  analgesia  ;  the  anaesthesia  in  states  of  excitation 
and  depression  Avas  present  always  in  cases  presenting  little  hope 
of  recovery.  A  very  remarkable  case  is  communicated  by  Renau- 
din,'  of  a  boy  who  had  hitherto  conducted  himself  perfectly  well, 

•  Griesinger's  Mental  Pathol.,  Syden.  '•Zeitschrift     fur     Psychiatrie,     10, 

ed.  (1867),  §  50.  1853,  p.  213. 

2  11,  1854,  p.  717.  ^  Moreau,  Psycliologie  Morb.  p.  312. 

3  Gaz.  Hebdom.  18.56. 

294 


HOW   MENTAL   UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  358  a. 

and  all  at  once  exhibited  the  worst  desires  and  most  reprehensible 
behavior.  He  was  not  entirely  insane,  but  the  whole  cutaneous 
surface  became  sensationless.  This  state  was  intermittent,  and, 
when  it  went  off,  the  patient  became  again  quite  orderly  and  obe- 
dient. Simultaneously  with  the  anaesthesia  the  worst  desires,  even 
desire  to  murder,  returned.  In  general  paralysis,  too,  there  is 
sometimes  present  an  evident  diminution  of  the  cutaneous  sensibility. 
Diminution  of  the  sense  of  smell  may  be  assumed  in  those  patients 
who  would  amuse  themselves  with  their  excrements.  All  these 
anaesthesia  must  have  a  central  basis. "^ 

§  358.  In  regard  to  anomalies  of  general  sensibility  associated 
with  no  illusion,  there  are  madmen  Avho  appear  insensi- 
ble to  the  ordinary  causes  of  pain.     Esquirol  speaks  of  ity^to coida 
an  idiot  girl  who  was  in  the  habit  of  scratching  a  lump    frequent 

°  ,  .  symptom. 

she  had  upon  her  cheek,  and  did  not  stop  until  she  had 
perforated  it,  and,  after  having  performed  this  perforation,  she 
enlarged  the  wound  by  continually  pulling  at  it  with  her  finger. 
Deranged  persons  often  cut  themselves  in  different  parts  of  the  body 
without  appearing  to  suffer.  But  the  greatest  phenomenon  of  in- 
sensibility is  the  indifference  with  which  persons  afflicted  with  in- 
sanity support  cold.  They  have  been  known  to  expose  themselves 
in  the  open  air,  to  sleep  upon  the  ground,  flagstones,  and  the  floor, 
when  the  ice  and  snow  caused  persons  warmly  clad  to  shiver.  And 
imprudences  like  these  appear  to  have  a  less  dangerous  influence 
upon  the  insane  than  upon  others.  This  fact,  however,  has  been 
much  exaggerated,  and  in  many  instances  the  ordinary  effects  pro- 
duced by  cold  are  observable  in  the  deranged.  These  unfortunates 
are  so  exposed  to  freezing,  that  in  many  establishments  there  is  an 
express  law  to  visit,  morning  and  evening,  and  wrap  in  flannel  the 
feet  of  those  whose  condition  causes  these  dangerous  consequences 
to  be  dreaded.2  Some  show  themselves  equally  indifferent  to  heat. 
There  are  those  who  walk  and  sleep  entirely  naked  in  clear  sun- 
light upon  the  hottest  days,  and  who  can  look  fixedly  for  a  long 
time  upon  the  sun  without  being  dazzled  by  it. 

■  Griesinger,  ut  supra.  Manuel  de  Med.  L^(j.     M.  Orfila,  tome 

2  "Dans  le  plus  haut  degre  de  la  i.  p.  377.     Dr.  Rush  makes  iiisensibil- 

manie     les     malades     oublient    leurs  ity  to  the  weather,  particularly  cold,  a 

besoins,  et  sentent  a  peine,  ou  pas  du  marked  test. 

tout,  la  doideur,  le  froid  et  le  chaud.^' 

295 


§  359.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

§  358  a.  Hunger  and  thirst  are  usually  intense,  digestion  varies, 
other phys-  while  the  bowels  are  almost  invariably  obstructed.  The 
icai  tests.  gj^j^^  jg  usually  dry,  rough,  and  inactive.^  The  presence 
of  almost  all  persons  of  unsound  mind  is  distinguished  by  a  peculiar 
specific  smell.^ 

The  genital  functions  are  ordinarily  preserved  by  the  insane  ; 
sometimes,  indeed,  their  activity  is  increased,  although  the  mental 
disease  may  not  be  of  erotic  origin.  This  super-excitation  of  the 
genital  organs,  independent  of  physical  or  moral  erotomania,  is 
particularly  observable  in  agitated  delirium  ;  whilst  in  despondent 
delirium  they  are  inactive,  at  least  if  it  have  not  love  for  a  cause  or 
object.  The  cases  are  rare,  however,  where  the  sexual  organs  are 
attacked  with  insensibility  or  impotence,  except  in  general  paraly- 
sis. The  aptitude  of  man  and  woman  for  the  venereal  act  and  for 
fecundation  is  not  lost :  though  in  insanity  as  in  sound  mind,  the  rapid 
succession  of  ideas,  the  violence  or  tenacity  of  pre-occupations  for- 
eign to  amorous  desires  are  capable  of  bringing  on  an  inactivity  of 
the  genital  functions. 

§  359.  The  j92<-Zse  forms  no  test.^     M.  Jacobi  has  instituted  ex- 
periments, in  a  large  number  of  cases  of  the  different 
The  secre-     iQxva's,  of  mental  unsoundness,  indicating  at  the  same  time 

tions  a  test,  _  _  '  °  ^ 

but  not  the  the  relative  pulsations  of  the  several  arteries,  auscul- 
tating the  heart,  and  counting  the  number  of  inspirations 
and  expirations.  The  attempt  to  deduce  a  fixed  rule,  however,  was 
in  vain.  "  I  had  the  vexation,"  he  tells  us,  "  to  see  that  my 
researches,  so  conscientiously  made,  did  not  fulfil  the  end  I  had 
proposed  ;  and  I  saw  that  it  was  impossible  to  establish  the  neces- 
sary connection  between  the  different  pathological  states  of  the 
intellect  and  feelings,  and  the  observations  I  had  collected  on  the 
state  of  the  circulation,  the  respiration,  and  the  temperature  of  the 
skin,  in  the  insane."* 

'  See  an  article  by  Dr.   Fevre,  An-  Semiologica  Somatica,  Bonn,  1828,  §  15. 

nales  Medico-Psydiologique,  1876.  Burrow's    Commentaries,  p.  297.     Azi 

2  Compare  Hill's  Essay  on  the  Pre-  article   by   Dr.    Laehr,  Zeitschrift  fiir 

vention  and   Cure  of  Insanity.     Lon-  Psychol.  34  Band,  3  Heft, 

don,  1814,  p.  401.    Erhard  in  Wagner's  ^  g^e  article  26  Am.  Journ.  of  Ins. 

"Beitriigen   zur    Philosophischen   An-  324. 

thropologie,"  vol.   i.  Vienna,  1794,  p.  ^  Jacobi,    Annales   Medico-Psycholo- 

111.      Milling's    Mentis   Alienationum  giques. 

296 


HOW    MENTAL    UNSOUNDNESS    IS    TO    BE    DETECTED.       [§  360. 

The  secretions,  and  particularly  the  perspiration,  are  imperfectly 
performed  in  the  majority  of  insane  cases.  In  these  cases  there  is 
a  dry  skin  of  an  unhealthy  color,  and  the  exhalation  of  a  disagree- 
able smell.  They  do  not  grow  thin,  but  even  become  fat,  although 
eating  little,  because  they  perspire  badly.  They  urinate  a  great 
deal,  and  the  passage  of  urine  is  frequent,  as  is  common  in  all 
nervous  disorders.  Constipation  is  an  almost  habitual  attendant  of 
the  disease. 

Without  being  oppressed,  the  respiration  in  the  insane  is  some- 
times unequal,  hurried,  diminished,  interrupted,  and  sobbing.  Their 
breath  is  often  fetid,  and  this  accidental  fetidity,  an  ordinary  symp- 
tom of  all  nervous  diseases,  frequently  announces  the  approach  of 
an  attack  of  melancholy,  mania,  or  hysteria.^ 

§  360.  The  most  interesting  symptoms  are  found  in  the  various 
abnormities  of  the  sensorial  system,  as  manifested  in  the 

,    , .   .  p  .11  Abnormi- 

excitement,  depression,  or  delirium  oi  one  or  the  other  ties  of  the 
of  the  senses.  An  excitement  or  depression  of  the  sen-  gyst^iii^*^ 
sorial  system  generally  keeps  even  pace  with  the  mental  ™^.^*  ^^*®^'- 
malady.  Before  the  mental  disease  breaks  out,  and 
while  its  advent  is  indicated  by  mental  and  moral  excitements,  an 
enhanced  excitability  in  the  sensorial  system  becomes  perceptible, 
which,  however,  where  psychical  energies  are  gradually  exhausted 
by  the  recurrence  and  violence  of  the  paroxysms,  frequently  turns 
to  an  opposite  condition,  so  that  the  failing,  obtuseness,  or  loss  of 
one  of  the  senses  attends  the  subsequent  progress  of  the  evil.  Ac- 
cording to  Spurzheim,^  the  ear  is  the  sense  which,  of  all  others, 
suffers  most  among  the  insane,  and  there  are  more  deaf  than  blind 
among  them.  The  deliria  of  the  senses,  which  are  either  illusions 
or  hallucinations,  are  found  in  every  form  of  the  disease  ;  they 
sometimes  attack  one  sense  only,  sometimes  several,  and  sometimes, 
though  rarely,  all  the  senses  at  once.^ 

'   Le(;ons    Cliniques   de   1' Alienation  "  For  a  full  account  of  the  illusions 

Mentale,    par    M.    Falret.      Septieme  and   hallucinations  of  the   senses  we 

Lecjon,  p.  185.     Paris,  1854.  would  refer  the  reader  to  the  Lemons 

2  Beobachtungen  ueber  den  Wahn-  Cliniques  sur  1' Alienation  Mentale  de 

sinn.        Nach     dem    Englischen    und  M.  Falret.     3d,  4th,  5th,  16th  lessons. 

Franzoesischen  bearbeitet  von  Embden,  Paris,    1854.       Also    to    the     Etudes 

p.  81.     See  Med.  Leg.,  M.  Orfila,  tome  Medico-Psychologiques  sur  I'Alienation 

i.   p.   358.     Paris,    1841.     M6d.    Leg.,  Mentale,  par  F.  E.  Renaudin.     Chap. 

Briand,  p.  540.     Paris,  1852.  8th,  p.  388.     Paris,  1854. 

297 


§  361.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

Esquirol  gives  it  as  the  result  of  his  experience^  that  when  the 
alienation  of  the  mind  begins,  and  sometimes  a  little  earlier,  smell 
and  taste  have  changed,  but  the  deceptions  of  the  ear  and  the  eye 
generally  characterize  the  fancies  of  most  madmen.  The  deliria  of 
smell  are  less  frequent  than  those  of  the  other  senses,  those  of  taste 
are  of  the  most  various  kind,  and  those  of  touch  impress  the  patients 
with  the  existence  of  attributes  in  bodies  other  than  those  which 
they  possess.  These  deliria  frequently  give  rise  to  fixed  ideas ; 
particular  postures,  various  attitudes  and  motions,  are  observed  in 
almost  all  madmen. 

§  301.  A  change  of  moral  disposition,  as  will  presently  be  seen,^ 

^,  is  one  of  the  first  symptoms,  other  than  physical,  with 

of  moral       which  the  disease  usually  makes  its  appearance.     Ex- 
disposition  ..,.,.  .  .  , 
notnn-         treme  irritabinty,  proneriess  to  anger,  suspicion,  conceal- 

"^^^  ■  ment,  obstinacy,  and  perverseness,  are  common.     In  re- 

gard to  the  affections,  various  abnormal  impulses  and  inclinations 
are  observed :  such  as  fondness  or  aversion  to  particular  persons, 
without  any  special  reason  ;  disposition  to  exercise  cruelty,  murder- 
ous desires,  a  wish  to  commit  arson,  or  to  steal. ^  Memory  is  gene- 
rally good  in  reference  to  things  occurring  during  the  disease,  or  to 
persons  with  whom  the  patient  was  then  connected,  but  defective  or 
mistaken  as  to  things  Avhich  occurred  previously,*  Of  the  intellec- 
tual faculties  not  all  are  uniformly  in  an  abnormal  state ;  on  the 
contrary,  some  functions  occasionally  improve,  thus  producing  a 
complex  state  of  madness  on  the  one  hand,  and  of  wit,  reflection, 
and  shrewdness,  on  the  other.* 

^  Compare  Hagan  Die  Sinnetausch-  Manual  de  Med.  Zitg.    M,  Orfila.    Tome 

nngen  in  Bezugauf   Psychologie  Heil-  i.  p.  382.     Paris,  1848, 

kunde,  uud  Rechtspflege.  Leipsic,  1837.  *  A  great  many  remember  things  which 

2  Infra,  §§  390-398.  occnr  ;    and  after  their  recovery  they 

3  See  w/ra,  §§  391-398.  "A  deranged  often  astonish  by  observations  which 
person,"  says  Orfila,  "  regards  with  in-  they  had  made  at  a  time  when  they 
difference  the  dearest  objects  of  his  seemed  most  completely  deprived  of 
aflfections,  he  thinks  no  more  of  them  their  reason. — M^d.  Leg.  J.  Briand, 
or  holds  them  in  such  aversion  as  to  p.  540.  Paris,  1852,  See  infra,  §  410. 
repel,  injure,  and  maltreat  them.  ^  ggg  cases  collected  by  Friedreich, 
Hatred,  jealousy,  anger,  wickedness,  Handbuch  der  alU  emeinen  Pathologie, 
fear,  terror,  a  disgust  for  life,  a  desire  p.  189.  See  infra,  §§  378-385  ;  406- 
to  destroy  and  kill,  replace  the  most  409. 

equal,   calm,    and   softest   nature." — 

298 


HOW   MENTAL    UNSOUNDNESS   IS    TO    BE   DETECTED.       [§  363. 

3.  Hereditary  tendency. 

(«)  Psychologically. 

§  362.  By  Morel,  in  his  Traite  des  Maladies  Mentales,  published 
in  Paris  in  1866,  the  line  of  descent  in  cases  of  heredi-   ^^        <.   ^ 

,  ,      ,  .         Descent  of 

tary  insanity  {folie  hereditaire')  has  been  traced  with  insanity, 
peculiar  delicacy  and  fulness.  The  stream  is  shown  universal, 
sometimes  to  change  its  channel,  sometimes  to  swell  as  certahied^ 
it  descends — viresque  acquiret  eundo.  In  the  parent  ™ies. 
it  exhibits  itself  in  the  form  of  extreme  nervous  sensibility  and  ex- 
citability. The  child  is  the  victim  of  hallucinations,  if  not  of  mania. 
In  remoter  descendants  are  exhibited  imbecility,  cretinism,  united 
with  physical  degeneracy.  No  doubt  cases  are  found  where  a  law 
of  deterioration  such  as  this  is  seen  progressing  with  apparent  cer- 
tainty in  its  downward  path.  But,  like  all  other  cases  of  assumed 
psychical  law,  the  theory  breaks  down  when  we  attempt  to  establish 
it  as  a  universal  rule.  Lord  Chatham  was  at  certain  periods  of  his 
life  hypochondriac  if  not  insane  ;  yet  his  son  William  Pitt  was  re- 
markable for  his  intellectual  equipoise  and  exactness.  Of  the  pro- 
lific family  of  George  III.  no  one  inherited  his  insanity.  Innu- 
merable cases  of  nervous  excitability  and  eccentricity  present  them- 
selves to  us  when  we  take  up  such  works  as  Walpole's  Correspond- 
ence, or  when  we  look  back  even  at  those  who  were  the  parents  of 
our  own  contemporaries  ;  yet  rarely  indeed  do  we  find  instances  of 
the  development  of  such  excitability  and  eccentricity,  from  gene- 
ration to  generation,  into  lunacy  and  idiocy.  Yet,  at  the  same 
time,  of  a  large  proportion  of  lunatics,  as  is  elsewhere  stated,  the 
immediate  ancestors  were  affected  with  some  phase  of  mental 
disease.^ 

§  363.  Of  the  hereditary  insanity — -folie  hereditaire — which  is 
thus   assumed.   Morel   gives   the   following    symptoms : 
Early  or   disproportionate    intellectual   activity  accom-    ot^hered^^ 
panied  by  deficiency  in  higher  moral  power — the  early    J'f^'y  in^*^!!- 
development  of  instinctive  impulses — tendencies  to  cruel- 
ties— irritability,  bizarre  whims,  fanciful   caprices,   and   business 
heedlessness,  as  among  the   accompaniments  of  the  approach   of 
puberty.     So  also  are   to  be  reckoned,  as  general  symptoms,  ex 

»  See  Heredity,  from  the  French  of  T.  Ribot.     London,  1875. 

299 


§  364.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

travagances  of    expression ;    periods  of  ennui,  in  which  labor  is 

odious,  interchanged  with  those  of  intense   and  feverish  activity. 

It  is  remarkable,  however,  that  these  symptoms  are  rarely  to  be 

observed  among  the  children  of  the  poor.     They  are  rather  the 

incidents  of  the  spoilt  children  of  fortune,  the  results  of  want  of 

hard  home-discipline.     And  in  order  to  make  them  comparatively 

ungovernable,  it  is  only  necessary  to  withdraw  the  discipline  the 

state  exercises  through  its  penal  laws.     If  we  concede  that  such 

persons  form  a  hereditary   class  who  are  not  to  be  restrained  by 

fear  of  punishment  because  to  punishment  they  are  not  amenable, 

we  will  do  much  to  establish  in  them,  in  the  shape  of  uncontrolled 

passions,  the  very  mental  disorder  which  the  speculative  theorist 

declares  to  be  their  predestined  lot.^ 

§  364.  At  the  same  time  there  is  no  question  that  insanity  runs  in 

families.  "  A  considerable  portion,"  to  quote  from  an 
Insanity  '■  '  ^         _ 

often  intelligent  note  to  the  namphlet  report  of  the  trial  of  An- 

liGr6Clit3.rv 

drews,  in  Massachusetts,  in  1868,  ''of  those  who  have 
suddenly  appeared  to  be  insane,  were  of  unsound  cerebral  con- 
stitution by  inheritance,  their  parents  or  ancestors  having  been 
insane."  Tuke,  referring  to  this  class  of  transient  cases,  says: 
"An  inquiry  into  the  patient's  history  will  generally  detect  a  change 
in  character  ;  this,  however,  obviously  cannot  be  looked  for  in  cases 
where  mental  disorder  can  be  traced  back  into  infancy,  or  where  the 
intellectual  and  moral  defects  are  congenital. "^  Again  he  adds  : 
"  In  some  persons  there  is  rather  a  congenital  proclivity  to  disease 
than  the  actual  disease  itself,  and  in  these,  a  circumstance  which, 
in  persons  without  that  proclivity,  would  produce  no  result,  will  call 
into  action  abnormal,  that  is  to  say,  truly  diseased,  mental  mani- 
festations, although  they  may  be  only  functional  and  subside  when 
the  exciting  cause  is  removed."^ 

Devergie  says:  "If  we  examine  the  ancestral  history  of  the 
families,  on  the  paternal  or  the  maternal  side,  of  these  transitory 
maniacs,  it  is  not  rare  that  one  or  even  many  members  of  the  family 
have  been  insane  for  longer  or  shorter  periods."  He  quotes  the 
case  of  one  of  these  patients  who  had  committed  homicide  in  a 
transitory  paroxysm,  "  in  whose  family  one  maternal  great-uncle 

'  See  supra,  §§  146-160 ;  195-199.  3  Bucknill      and      Tuke,     Insanity, 

2  Bucknill  and  Tuke,  Insanity,  201.     186. 
See  an  article  in  2  Brain,  491. 

300 


HOW   MENTAL    UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  366. 

died  insane ;  one  paternal  aunt  killed  herself,  and  another  relative 
on  the  mother's  side  was  known  to  have  been  troubled  with  eccen- 
tricities (bizarres  {dees')  all  her  life."^ 

Castelnau,  describing  one  who,  in  a  momentary  paroxysm  of 
mania,  had  killed  another,  said,  "  that  her  mother  suffered  from 
grave  disease  of  the  cerebro-spinal  system,  and  had  hemiplegia 
previous  to  this  daughter's  birth.  Her  grandfather  was  insane, 
and  her  brothers  were  strongly  impressed  with  the  character  of  her 
ancestors."^  Of  another  he  says  the  grandmother  and  great-grand- 
mother were  insane,  and  the  father  was  considered  by  the  neighbors 
as  not  sane.^ 

§  365.  "  In  a  great  majority  of  cases,"  says  Dr.  Wood,  "insanity 
is  produced  by  exciting  causes  acting  upon  a  predisposition  to  the 
disease.  Inhei'itance  is  the  most  frequent  source  of  this  predispo- 
sition— perhaps  more  frequent  than  all  others  put  together.  Even 
a  particular  form  of  insanity  is  often  inherited  ;  and  it  has  been 
noticed  that  the  attack  is  apt  to  come  on  at  the  same  period  of  life 
in  the  parent  and  his  offspring.  The  tendency  to  suicide  not  unfre- 
quently  descends  from  parent  to  child.  It  is  thought  that  children 
born  before  the  occurrence  of  insanity  in  the  parent  are  less  liable 
to  be  affected  than  those  born  subsequently."* 

§  866.  "Although  at  the  first  glance,"  says  Renaudin,  "  man 
appears  to  possess  an  independent  existence,  isolated  Renaudin's 
from  his  birth  from  those  who  begot  him,  although  there  exposition, 
is  but  little  apparent  relation  between  his  ripe  age  and  first  infancy ; 
it  is  not  the  less  true,  that,  behind  the  characters  peculiar  to  his  in- 
dividuality, we  can  discover  certain  typical  signs,  some  of  which 
betray  his  nationality  and  others  relate  to  his  family.  These  typi- 
cal signs  are  to  be  encountered  not  only  in  his  physical  organization, 
but  are  also  found  in  his  moral  idiosyncrasies,  and,  if  tradition  is  of 
any  force  as  regards  manners  and  customs,  inheritance  is  certainly 
of  great  value  as  relates  to  the  tastes  and  habits.  It  is,  in  fact, 
manifested  in  the  transmission  from  generation  to  generation  of  the 
most  inveterate  maladies,  before  which  art  is  obliged  to  confess  its 

'  Ann.  Hyg.  et  Leg.  Med.  xi.  2d  ser.  ^  ibia.  443. 

312.     See  Rogers  on   Hereditary  Ner-  ■•  Practice  of  Medicine,  by  Prof.  G.  B. 

vous  Diseases,  Papers  Med.  Leg.  Soc,  Wood,    M.D.,  voL    ii.   p.    G72,    Pliila. 

N.  Y.  1874.  1849.     See  report  of  Thute's  Case,  18 

2  Ann.  Hyg.  xiv.  442.  Journ.  Ment.  Sci.  450. 

301 


§  366.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

weakness  ;  and  it  is  with  difficulty  prophylactic  measures  ward  oflf 
the  sad  result.  In  mental  alienation,  also,  experience  furnishes  us 
daily  proofs  of  this  transmission,  of  which  it  is  essential  to  study 
the  mode. 

"  The  question  whether  this  transmission  is  direct,  or  results 
from  a  predisposition  whose  development  is  due  to  the  influence  of 
an  occasional  cause,  or,  in  other  words,  whether  by  itself  it  is  an 
essential  condition  of  causality,  is  no  longer  doubtful,  and  we  now 
possess  numerous  examples  not  only  of  hereditary  transmission,  but 
also  of  an  hereditary  accumulation  of  the  morbid  predispositions. 
This  is  particularly  the  case  in  families  where  wedlock  is  limited  to 
a  small  circle  of  fortune  and  social  fitness.  The  royal  families  of 
many  countries  have  not  escaped  this  law.  We  see  generations  of 
insane  succeed  each  other  with  an  unyielding  regularity,  and  there 
are  families  which  in  this  relation  seem  pursued  by  a  desolating 
fatality. 

"Aside  from  idiocy  and  imbecility,  which  show  themselves  a 
short  time  after  birth,  the  predisposition  does  not  ordinarily  show 
itself  until  the  individual  has  reached  a  certain  development — that 
is  to  say,  when  all  the  conditions  of  causality  are  reunited.  This 
native  predisposition  does  not  suppose  that  those  that  preceded 
were  insane  ;  it  depends,  above  all,  upon  the  conditions  in  which 
they  are  placed  and  which  react  upon  the  phases  of  their  existence. 
■This  predisposition  is  also  progressive  from  one  generation  to  ano- 
ther ;  and  it  is  in  this  manner  that  great  social  commotions  and 
certain  epidemics  contribute  to  the  production  of  insanity,  in  leaving 
after  them  deep  distress  or  in  producing  a  disordered  exaltation. 

"All  causes  capable  of  altering  the  public  health  have  a  marked 
influence  upon  the  immediate  production  of  insanity  or  upon  the 
hereditary  transmission  of  its  predisposition.  The  unhealthiness  of 
dwellings  and  insufficiency  or  bad  quality  of  food  are  so  many 
circumstances  influencing  its  production,  and  to  which  municipal 
governments  should  pay  serious  attention.  It  is  on  account  of  these 
and  other  analogous  causes  that  cretinism  and  idiocy  are  endemic 
in  certain  localities,  and  that  this  influence  is  exercised  not  only  on 
natives,  but  also  upon  those  establishing  themselves  there. 

"  The  mode  of  life  of  the  parents,  and  the  diseases  they  have 
had  are  no  less  efficacious  in  producing  a  predisposition  to  mental 
unsoundness.     If  insanity  has  existed  in  those  that  preceded,  the 
302 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  567. 

chances  of  a  direct  transmission  are  much  more  probable.  This 
predisposition  is  sometimes  so  marked  as  to  be  in  some  measure 
the  only  cause.  Among  the  circumstances  most  likely  to  produce 
an  hereditary  predisposition,  we  should  mention  drunken  habits  in 
the  parents.^  Many  indeed,  are  the  cases  of  idiocy  and  imbecility 
which  owe  their  situation  to  this  cause.  Many  generations  thus 
suifer  the  punishment  inflicted  for  the  faults  of  one  alone. 

"  The  hereditary  predisposition  presents  numerous  varieties  in  its 
evolution.  Many  members  of  the  same  family  are  free  from  mental 
unsoundness ;  and  one  only  becomes  insane.  In  another  the  in- 
heritance shows  itself  from  mother  to  daughter  as  a  consequence  of 
parturition.  This  predisposition  sometimes  consists  only  in  the 
peculiarity  of  character,  which  drags  a  man  towards  a  precipice 
which  conducts  irresistibly  to  insanity. "^ 

§  367.  Dr.  Thomson,  surgeon  to  the  General  Prison  of  Scotland, 
as  cited  by  Dr.  Maudsley,^  gives  in  this  connection  the  crime  he- 
result  of  his  extensive  experience  in  a  very  striking  reditary. 
shape.  He  declares  that  crime  is  in  a  large  degree  hereditary  in 
families ;"  though  this,  it  ought  to  be  observed,  is  to  be  in  many 
cases  accounted  for  by  the  parents'  bad  example,  and  the  evil  asso- 
ciations of  home.  But  independently  of  this,  there  are  certain 
nervous  and  physical  disorders,  traced  by  this  experienced  observer, 
which  cannot  be  so  explained.  Thus  epilepsy,  dipsomania,  spinal 
deformities,  stammering,  imperfect  organs  of  speech,  club-feet,  cleft 
palates,  harelip,  deafness,  paralysis,  and  similar  marks  of  physical 
degeneration,  are  specified  as  accompanying  this  hereditary  line  of 
abnormal  guilt. 

'  See,  Alcohol,  its  Action  and  Uses,  in  that  year,  there  were  six  convicts  of 

by  Dr.  Richardson.    Lond.,  1875.    Asto  one   family;    that    at   the   same   time 

failure  of  English  legislation  to  restrain  there  were  four  brothers  of  one  family, 

drunkenness,   see    an    article  in    the  and  three  of  another  family,  imprisoned 

Edinburgh   Review    (Oct. -Dec.   1&79),  as  convicts  in  that  institution.    Lucas, 

p.  134.  in  L'Her^dite  Naturelle,  tells  us  that 

2  Etudes  Medico-Psychologiques,  par  279  cases  of  mental  disease,  accompa- 
L.  F.  E.  Renaudin.  Chap,  ii.  p.  33.  nied  more  or  less  with  moral  obliquity, 
Paris,  1854.  See  "The  Jukes,"  by  R.  were  to  be  traced  to  the  mother.  Sir 
L.  Dngdale,  3d  ed.,  N.  Y.  1877.  Henry  Holland,  in  his  medical  notes, 

3  Body  and  Mind,  London,  1870,  p.  informs  us  that  Oxford,  who  fired  at 
66.  the  queen,  his  father,  and  grandfather, 

■•  It  was  stated  in  1881  that  in  the  all  believed  themselves  to  be  St.  Paul. 
Eastern  Penitentiary  in  Philadelphia, 

303 


§  369.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


Nervous 
diseases 
may  traus- 
mit  mental 
derange- 
ment. 


§  368.  Dr.  Maudsley,  to  this  and  similar  statements,  adds :  "  I 
could  not,  if  I  would,  in  the  present  state  of  knowledge, 
describe  accurately  all  the  characteristics  of  the  insane 
neurosis,  and  group  according  to  their  affinities  the  cases 
testifying  to  its  influence.  The  chief  concern  now  with 
its  morbid  peculiarities  is  to  point  out,  first,  that  they 
mark  some  inherited  fault  of  brain-organization ;  and,  secondly,  that 
the  cause  of  such  fault  is  not  insanity  alone  in  the  parent,  but  may 
be  other  nervous  disease,  such  as  hysteria,  epilepsy,  alcoholism, 
paralysis,  and  neuralgias  of  all  kinds.  Except  in  the  case  of  suicidal 
insanity,  it  is  not  usual  for  the  parent  to  transmit  to  the  child  the 
particular  form  of  mental  derangement  from  which  he  has  suffered  ; 
insanity  in  the  parent  may  be  epilepsy  in  the  child,  and  epilepsy  in 
the  parent,  insanity  in  the  child  ;  and  in  families  where  a  strong 
tendency  to  insanity  exists,  one  member  may  be  insane,  another 
epileptic,  a  third  may  suffer  from  severe  neuralgia,  and  a  fourth 
may  commit  suicide."  Nervous  disease,  declares  this  eminent 
physician,  is  a  veritable  Proteus,  sometimes  skipping  generations, 
and  sometimes  displaying  itself  in  several  contemporaneous  mem- 
bers of  one  family  in  the  most  capricious  and  dissimilar  forms. ^ 

§  369.  In  regard  to  idiocy,  the  facts  are  very  strik- 
parcnts  i^gv  "Suffice  it  to  say,"  we  are  told  by  Dr.  S.  G. 
caiiseof^  Howe,  chairman  of  the  Massachusetts  State  Idiocy  Com- 
idiocy.  mission,  in  a  very  luminous  report,  submitted  in  1848, 


'  See  also  on  this  point  essays  by 
Dr.  Stephen  Rogers,  in  3  Hammond's 
Journ.  Psych.  Med.  625  ;  Papers  Med. 
Leg.  Soc.  N.  Y.  (1874)  p.  74;  and  by 
Dr.  O'Dea,  in  4  .Journ.  Psych.  Med.  28. 
See,  generally,  the  West  Riding  Asy- 
lum Reports.  It  was  stated  in  a  Boston 
daily  paper  of  April,  1872,  that  a  gentle- 
man was  then  sometimes  seen  in  New 
York,  the  pupils  of  whose  eyes  instead 
of  being  round  are  of  the  form  of  a  key- 
hole. He  has  a  son  with  precisely  the 
same  anomaly.  In  consequence  of  the 
aperture  being  very  large,  and  without 
a  muscular  apparatus  for  contracting 
according  to  the  quantity  of  light  the 
organ  can  bear  with  impunity,  as  in 

804 


ordinary  eyes,  they  are  obliged  to  knit 
their  brows  and  partially  curtain  their 
eyes  by  closing  the  lids,  otherwise  the 
retina  would  be  overpowered  and  per- 
haps paralyzed  by  impinging  rays. 
Albinos  transmit  the  congenital  defect 
of  their  own  optics  to  their  children  in 
the  proportion  of  one  to  about  five. 
That  is,  in  a  family  of  six  children  one 
will  generally  have  red  pupils.  They 
see  best  in  an  obscure  light,  because 
the  pigment  which  absorbs  all  the  rays 
not  required  for  distinct  vision  is  want- 
ing in  them.  Rabbits,  especially  white 
ones,  are  albinos,  and  so  are  many  va- 
rieties of  parrots. 


HOW    MENTAL    UNSOUNDNESS    IS    TO    BE   DETECTED.       [§  370. 

"  that,  out  of  420  cases  of  congenital  idiocy  examined,  some  informa- 
tion was  obtained  respecting  the  condition  of  the  progenitors  of  359. 
Now,  in  all  these  359  cases,  save  only  four,  it  was  found  that  one 
or  the  other  or  both  of  the  progenitors  of  the  unfortunate  suiferers 
had,  in  some  way,  widely  departed  from  the  normal  condition  of 
health,  and  violated  the  natural  laws." 

"We  have  no  doubt,"  says  a  late  eminent  physician,  "that 
various  immoral  and  vicious  practices  ought  to  be  ascribed  to  in- 
sanity. When  periodic  insanity  has  shown  itself  in  a  large  family, 
it  is  probable  that  some  members  of  the  family  will  evince  a  pro- 
pensity to  thieving  or  swindling.  And,  when  more  children  than 
one  of  the  same  parents,  bursting  through  all  the  restraints  imposed 
by  carefully-instilled  principles  and  established  habits,  engage  in 
swindling  transactions,  it  will  often  appear,  upon  inquiry,  that  in- 
sanity has  generally  broken  out  in  that  family."^  And  the  same 
high  authority  tells  us  that  in  families  where  insanity  prevails  with 
the  progenitors,  he  has  known  two,  three,  or  four  children  of  the 
same  parents  become  deranged.  One  instance  in  particular  he 
dwells  upon,  in  which,  among  a  family  of  twenty  persons,  the 
children  of  a  brother  and  of  two  sisters,  ten  were  afflicted  with 
insanity.^ 

§  370.  An  interesting  table,  originally  published  in  the  London 
Quarterly  Review,^  and  indorsed  by  Dr.  Winslow,*  will  show  the 
importance  of  this  inquiry.^ 

•  Essays  on  Partial  Derangement  in  by  Francis  Galton,  F.R.S.,  etc.,  8vo., 

Supposed    Connection  witli    Religion.  London,  1869."     The  following  obser- 

By  the  late  John  Cheyne,  M.D.     Dub-  vations  of  Mr.  Darwin  are  directly  in 

lin,  1843.  point: — 

2  As  to  the  marriage  of  near   rela-         "  When  we  reflect  that  certain  extra- 

tives,  see  The  Marriage  of  Near  Kin,  ordinary  peculiarities  have   thus   ap- 

A.  H.  Huth,  London,  1875  ;  articles  in  peared  in  a  single  individual  out  of 

48  Westminster  Rev.  299  ;  Fortnightly  many  millions,  all  exposed  in  the  same 

Rev.,  July,  1875.  country  to  the  same  general  conditions 

^  No.  163.  of  life,  and,  again,  that  the  same  ex- 

<  Lectures,  etc.,  150.     See  Rush  on  traordinary  peculiarity  has  sometimes 

the  Mind,  46,  where  this  point  is  ex-  appeared  in  individuals  living  under 

amined.  widely  different  conditions  of  life,  we 

6  On  the  general  subject  of  the  he-  are  driven  to  conclude  that  such  pecu- 

redity  of  special  moral  and  intellectual  liarities   are   not   directly  due   to   the 

traits,  see  "  Hereditary  Genius,  an  in-  action  of  the  surrounding  conditions, 

quiry  into  its  laws  and  consequences,  tut  to  unknown  laws   acting  on   the 

VOL.  I.— 20  805 


§  371.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

§  371.  Dr.  Steinau,  in  his  Essay  on  Hereditary  Disease,  men- 
tions a  very  interesting  incident  bearing  on  this  point. ^ 
hereditary     "  When  I  was  a  boy,  there  lived  in  my  native  town  an 
criminal        ^i^  j^^g^j^    named  P ,  who  was  such  an  inveterate 

propensity.  ' 

thief  that  he  Avent  in  the  whole   place   by  that  name  ; 

people  speaking  of  him  used  no  other  appellation  but  that  of  The 
Thief,  and  everybody  then  knew  who  was  meant.  Children  and 
common  people  were  accustomed  to  call  him  by  that  name,  even  in 
his  presence,  as  if  they  knew  not  his  other  name  ;  and  he  bore  it 
to  a  certain  degree  with  much  good-natured  forbearance.  It  was 
even  customary  for  the  tradesmen  and  dealers,  who  frequented  the 
annual  fair  in  the  place,  to  enter  into  formal  treaty  with  him,  that 
is,  they  gave  him  a  trifling  sum  of  money,  for  which  he  engaged 
not  only  not  to  touch  their  property  himself,  but  even  to  guard  it 

against  other  thieves.     A  son  of  this  P ,  named  Charles,  after- 

wards  lived  in  B during  my  residence  there.  He  was  respect- 
ably married,  and  carried  on  a  profitable  trade  which  supported 
him  handsomely.  Still,  he  could  not  help  committing  many  rob- 
beries  quite  without  necessity,  and  merely  from   an   irresistible 


organization  or  constitution  of  the  in- 
dividual ;  that  their  production  stands 
in  scarcely  closer  relation  to  the  condi- 
tion than  does  life  itself.  If  this  be  so, 
and  the  occurrence  of  the  same  unusual 
character  in  the  parent  and  child  can- 
not be  attributed  to  both  having  been 
exposed  to  the  same  unusual  condi- 
tions, then  the  following  problem  is 
worth  consideration,  as  showing  that 
the  result  cannot  be  due,  as  some 
authors  have  supposed,  to  mere  coinci- 
dence, but  must  be  consequent  on  the 
members  of  the  same  family  inheriting 
something  in  common  to  their  consti- 
tution. Let  it  be  assumed  that  in  a 
large  population  a  particular  affection 
occurs  on  an  average  in  one  out  of  a 
million,  so  that  the  a  priori  chance 
that  an  individual  taken  at  random 
will  be  so  affected  is  only  one  in  a  mil- 
lion. Let  the  population  consist  of 
sixty  millions,  composed,  we  will  as- 

306 


sume,  of  ten  million  families,  each  con- 
taining six  members.  On  these  data, 
Professor  Stokes  has  calculated  for  me 
that  the  odds  will  be  no  less  than 
8,333,000,000  to  one  that  in  the  ten 
million  families  there  will  not  be  even 
a  single  family  in  which  one  parent 
and  two  children  will  be  affected  by 
the  peculiarity  in  question.  But  nume^ 
rous  cases  could  be  given,  in  which 
several  children  have  been  affected  by 
the  same  rare  peculiarity  with  one  of 
their  parents  ;  and  in  this  case,  more 
especially  if  the  grandchildren  be  in- 
cluded in  the  calculation,  the  odds 
against  mere  coincidence  become  some- 
thing prodigious,  almost  beyond  calcu- 
lation." See  also  Mr.  Gal  ton's  later 
work — English  Men  of  Science :  Their 
Nature  and  Nurture.     Lond.  1874. 

'  See  Pathological  and  Philosophical 
Essay  on  Hereditary  Disease,  p.  19, 
No.  21. 


HOW   MENTAL   UNSOUNDNESS    IS    TO    BE   DETECTED.       [§  372. 

inclination.  He  was  several  times  arrested  and  punished  ;  the 
consequence  was  that  he  lost  his  credit  and  reputation,  by  which  he 
was  at  last  actually  ruined.     He  died  while  still  a  young  man,  in 

the  house  of  correction  at  Sp ,  where  he  had  been  confined  for 

his  last  robbery.     A  son  of  this  Charles,  and  grandson  of  the 

above-mentioned  and  notorious  P ,  in  my  native  town,  lived  in 

the  house  where  I  resided.  In  his  earliest  youth,  before  he  was 
able  to  distinguish  between  good  and  evil,  the  disposition  to  steal- 
ing, and  the  ingenuity  of  an  expert  thief,  began  already  to  develop 
themselves  in  him.  When  about  three  years  old,  he  stole  all  kinds 
of  eatables  within  his  reach,  although  he  always  had  plenty  to  eat, 
and  only  needed  to  ask  for  whatever  he  wanted.  He  therefore 
was  unable  to  eat  all  that  he  had  taken ;  nevertheless  he  took  it, 
and  distributed  it  among  his  play-fellows.  When  playing  with 
them,  some  of  their  playthings  frequently  disappeared  in  a  moment, 
and  he  contrived  to  conceal  them  for  days,  and  often  for  weeks, 
with  a  slyness  and  sagacity  remarkable  for  his  age.  When  about 
five  years  old,  he  began  to  steal  copper  coins ;  and  at  the  age  of 
six  years  he  began  to  know  something  of  the  value  of  money,  and 
he  looked  out  for  silver  pieces  ;  and  in  his  eighth  year  he  only 
contented  himself  with  larger  coins,  and  proved  to  be,  on  public 
promenades,  an  expert  pickpocket.  He  was  early  apprenticed  to 
learn  a  trade,  but  his  master,  being  continually  robbed  by  him, 
soon  dismissed  him.  This  was  the  case  with  several  other  trades- 
men, till  at  last,  in  his  fourteenth  year,  he  was  committed  to  the 
house  of  correction." 

§  372.  "Nothing,"  says  Mr.  Hill,  in  his  work  on  crime,  "has 

been  more  clearly  proved  than  that  crime  is,  to  a  con- 

. ,      , ,  IT  •  •         •       I  •     ^^^  ^^*^h 

siderable  extent,  hereditary — crime  appearing,  in  this   hereditary 

respect,  greatly  to  resemble  pauperism,  which,  according  wUhout'  ^ 
to  the  evidence   of  the    poor-law  commissioners,  often   "isamty  no 

'^  _  '  _  defence. 

proceeds  from  father  to  son  in  a  long  line  of  succession."^ 
He  adduces  numerous  cases  in  confirmation  of  the  fact.     One  of 
the  most  striking  applies  to  the  families  of  three  brothers,  contain- 
ing together  fifteen  members.     Of  these,  no  fewer  than  fourteen 
were  utterers  of  base  coin,  while  the  fifteenth,  who  appeared  to  be 

'  Crime  ;    its  Amount,  Causes,   and     1853,  p.  55.    See  an  article  in  15  Jouru. 
Remedies.     By  Frederick  Hill,  Barris-     Ment.  Sci.  487. 
ter-in-law,  late*  Inspector   of  Prisons, 

807 


§  373.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

an  exception  to  his  kindred,  was,  at  length,  detected  in  setting  fire 
to  his  own  house,  which  he  had  insured  for  four  times  its  value. 
"  Supposing  each  of  those  employed  in  uttering  base  coin  to  have 
passed  only  one  piece  a  day,  and  to  have  had  a  career  of  five  years' 
duration  (which  there  is  reason  to  believe  is  about  the  average), 
no  fewer  than  twenty  thousand  offences  might  have  been  prevented 
by  removing  the  three  brothers  permanently  from  society  before 
they  became  fathers  of  families."  The  disposition  to  commit  crime 
is  often  unquestionably  an  incurable  form  of  insanity ;  hence,  we 
read  of  persons  who  are  all  their  lives  criminals,  and  only  terminate 
one  period  of  imprisonment  to  recommence  another.  The  case  of 
a  woman  is  cited  by  Mr.  Hill,  who  continued  in  a  career  of  crime 
for  twenty-five  years  ;  and  that  also  of  another  woman,  fifty  years 
of  age,  who  had  already  been  in  prison  sixty-seven  times.  Further- 
more, he  refers  to  another  example,  of  a  woman  who  had  been  in 
the  police  cells,  in  Edinburgh,  at  least  one  thousand  times,  chiefly 
for  acts  of  violence.^  But  it  should  not  be  forgotten  that,  unless 
there  be  hereditary  insanity,  mere  hereditary  tendency  to  crime  is 
no  more  a  defence  to  crime  than  is  the  doctrine  of  the  hereditability 
of  sin. 

(5)  Legally. 

§  373.  In  a  legal  as  well  as  sl  ])sycJiological  view,  the  relevancy 
of  evidence  of  hereditary  taint  has  been  very  ably  shown  by  a  late 

'  Ibid.  See  The  Jukes,  by  R.  L.  of  these  being  specifically  diseased)  ; 
Dugdale,  N.  T.  1877.  This  careful  and  the  cost  to  the  state  in  seventy-five 
and  painstaking  research  into  the  his-  years  inflicted  by  this  single  family  is 
tory  of  a  celebrated  family  of  crimi-  estimated  by  the  author  at  $1,308,000, 
nals  in  New  York  is  deserving  of  atten-  ' '  without  reckoning  the  cash  paid  for 
tion.  The  author  considers  the  re-  whiskey,  or  taking  into  account  the 
markable  facts  that  he  has  developed  entailment  of  pauperism  and  crime  of 
to  prove  that  crime,  intemperance,  the  survivors  in  succeeding  genera- 
prostitution,  pauperism,  illegitimacy,  tions,  and  the  incurable  diseases, 
and  the  like  are  all  hereditary.  Of  the  idiocy  and  insanity,  growing  out  of 
1200  descendants  and  collateral  rela-  this  debauchery,  and  reaching  further 
tives  of  the  five  sisters  who  founded  than  we  can  calculate."  Of  540  per- 
the  family,  140  were  criminals  and  sons  related  by  blood  to  the  Jukes, 
oflfenders  (this  is,  says  the  author,  a  there  were  84  harlots,  60  criminals,  106 
low  and  imperfect  estimate),  280  were  bastards,  65  diseased  (29  syphilitic), 
paupers,  60  were  habitual  thieves,  7  and  95  paupers, 
murderers,  50  common  prostitutes  (40 

308 


HOW   MENTAL   UNSOUNDNESS   IS   TO   BE   DETECTED.       [§  373. 
eminent  ludare.^Iwhose  capacity  as  a  mental  observer  was   Legally, 

.  .  •  r-  evidence  of 

not  less  than  his  ability  as  a  judge.  On  the  trial  of  the  hereditary 
issue,  the  object  of  which  was  to  determine  the  validity  admissible. 
of  the  will  of  Captain  Arrowsmith,  the  evidence  was 
that  the  deceased  was  a  retired  mariner  who  had  attained  a  com- 
petence ;  the  plaintiff  was  his  sister,  his  heir  by  descent,  as  the  last 
of  her  father's  issue ;  and  the  defendant,  his  housekeeper,  was  his 
devisee.  The  fact  in  contest  was  his  sanity.  There  was  no  evi- 
dence of  fraud  or  imbecility ;  but  the  plaintiffs  witnesses  testified 
as  to  acts  of  sudden  and  unprovoked  passion,  violence,  wildness, 
extravagance,  and  eccentricity ;  and,  in  order  to  corroborate  the 
inference  from  them,  her  counsel  offered  the  deposition  of  Susan 
Arrowsmith,  the  widow  of  one  of  the  testator's  brothers,  that  the 
testator's  father  was  insane  towards  the  close  of  his  life  ;  that  one 
of  the  testator's  two  uncles,  on  the  father's  side,  was  insane,  and 
the  other  imbecile  ;  that  his  two  aunts  on  the  same  side,  and  their 
children,  were  insane  ;  that  a  son  of  one  of  them  is  in  a  madhouse  ; 
and  that  her  own  husband  was  mentally  disqualified  before  his 
death.  The  admission  of  the  deposition  was  opposed,  on  the  ground 
that  the  legitimate  inquiry  was  into  the  state  of  the  testator's 
mind,  not  that  of  another  ;  and  that  it  did  not  follow,  that,  because 
the  testator's  father  and  his  collateral  relations  were  insane,  he  must 
have  been  so  too.  The  point  was  elaborately  argued  on  principle 
and  authority,  but  the  chief  justice  said :  "  I  admit  the  deposition 
without  hesitation,  notwithstanding  the  dicta  of  Mr.  Shelford^  and 
Mr.  Chitty,^  that  it  is  an  established  rule  of  law  not  to  admit  proof 
of  insanity  in  other  members  of  the  family  in  civil  or  criminal  cases. 
Established !  When,  where,  and  by  whom  ?  Certainly  not  by  the 
house  of  lords,  in  McAdam  v.  Walker,*  the  only  case  cited  for  it, 
for  the  question  there  was  avowedly  dodged.  That  high  court  would 
not  shock  common  sense  by  affirming  the  order  of  the  Scotch  court 
of  session ;  nor  would  it  gratuitously  reverse  it,  when  the  decision 
could  be  safely  put  on  another  ground.  The  authority  of  a  judg- 
ment appealed  from,  and  left  in  dubio,  cannot  be  very  great.  Sir 
Samuel  Romilly's  argument  against  the  evidence  was  rested  on  the 
fecundity  and  interminableness  of  collateral  issues  ;  and  Mr.  Chitty 

>  Gibson,  C.  J.  "  Med.  Jurisp.  355. 

«  Treat,  on  Lunacy,  59.  *  1  Dews.  Par.  Ca.  148. 

309 


§  373.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

seems  to  have  had  a  glimpse  of  the  same  idea,  when  he  said  the 
course  is  to  confine  the  evidence  to  the  mental  state  of  the  party. 
But  every  new  fact,  though  it  open  a  new  field  of  inquiry,  is  not 
collateral.     It  may  bear  directly  on  the  fact  in  contest ;  and  where 
it  does  so,  it  is  not  in  the  power  of  the  court  to  shut  it  out.     A  col- 
lateral issue  is  such  as  would  be  raised  by  allowing  a  party  to  put 
a  question  to  a  witness,  on  cross-examination,  in  regard  to  a  fact 
palpably  unconnected  with  the  cause,  in  order  to  afford  an  oppor- 
tunity to  discredit  him  by  contradicting  him ;  but  does  not  proof  of 
hereditary  madness  bear  directly  on  the  condition  of  the  mind,  which 
is  the  subject  of  investigation  ?     What  if  the  point  had  been  ruled 
by  the  chancellor  and  law  judges  in  the  house  of  lords  ?    Profoundly 
learned  in  the  maxims  of  law,  they  were  profoundly  ignorant  of  the 
lights  of  physiology  ;  yet,  free  from  the  presumptuousness  of  which 
ignorance  is  the  foster-father,  they  refused  to  rush  on  the  decision 
of  a  question  to  which  they  felt  themselves  incompetent.    Mr.  Chitty 
fancifully  puts  the  solution  of  questions  of  insanity  on  the  doctrine 
of  legal  presumptions.     'As  the  imputation,'  he  says,  '  is  contrary 
to  the  natural  presumption  of  adequate  intellect,  the  deficit  should 
be  established  by  direct  and  positive  evidence,  and  not  merely  by 
conjectural  or  probable  proof.'    If  that  be  law,  a  question  of  insanity 
is  the  only  one  in  Avhich  positive  evidence  is  required,  and  circum- 
stantial evidence  to  corroborate  is  rejected.     Why  is  evidence  of  an 
old  grudge  admitted  against  a  prisoner  as  a  remote  proof  of  malice, 
if  the  remote  proof  of  hereditary  insanity  may  not  be  given  by  him 
to  rebut  it;  and  why  should  the  presumption  of  sanity  be  allowed 
to  overbear  the  presumption  of  innocence,  the  strongest  of  them  all? 
I  admit  that  hereditary  insanity  will  not  itself  make  out  a  case  for 
or  against  a  member  of  the  family  ;  but  to  say  that  it  may  not  cor- 
roborate what  Mr.  Chitty  calls  direct  and  positive  proof,  without 
defining  it,  staggers   all  belief.     In  a  measuring  cast  it  ought  to 
prevail.     He  says  harsh  conduct,  bursts  of  passion,  or  displays  of 
unnatural  feeling  will  not,  of  themselves,  establish  insanity.     Be  it 
so.     But,  because  the  springs  of  such  actions  are  concealed,  are 
they  never  to  be  laid  bare,  and  shown  to  be  seated  in  the  blood  ? 
When  it  is  admitted  by  Mr.  Chitty  and  Mr.  Shelford  themselves, 
that  insanity  is  a  descendable  quality,  they  give  up  the  argument. 
There  can  be  nothing  unreasonable  in  referring  wild,  furious,  and 
unnatural  actions,  not  otherwise  accounted  for,  to  the  aberrations 
310 


HOW   MENTAL   UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  373. 

of  a  mind,  the  reflux  of  that  of  a  crazy  father.  Mr.  Taylor,  a  dis- 
tinguished lecturer  on  medical  jurisprudence  in  the  Guy's  Hospital, 
London,  says  that  '  in  making  a  diagnosis  of  a  case  of  insanity,  the 
first  question  put  is  commonly  in  reference  to  the  present  or  past 
existence  of  the  disorder  in  other  members  of  the  family.  There 
can  be  no  doubt,  from  the  current  testimony  of  many  writers  on 
insanity,  that  a  disposition  to  the  disease  is  frequently  transmitted 
from  parent  to  child  through  many  generations.  M.  Esquirol  has 
remarked,  that  this  hereditary  taint  is  most  common  of  all  cases  to 
which  insanity  can  be  referred.'^  M.  Esquirol  was,  in  1838,  and 
perhaps  is  still,  the  principal  physician  to  the  hospital  for  the  insane 
at  Charenton,  in  France,  and  a  member  of  the  Royal  Academy  of 
Medicine  at  Paris.  His  tables  of  insanity  are  held  in  high  repute 
by  not  only  the  physicians  of  France  but  of  Europe.  Well  might 
Mr.  Taylor  say  that  these  things  ought  to  be  borne  in  mind  by 
medical  jurists.  The  knowledge  attained  by  men,  of  a  subject 
which  they  have  grappled  all  their  lives,  ought  surely  to  prevail 
against  knowledge  gleaned  from  the  hornbooks  of  a  profession  to 
w^hich  the  gleaners  did  not  belong.  Strange  that  a  source  of  infor- 
mation open  to  every  one  else  should  be  closed  to  those  who  are  to 
pass  on  the  fact.  Every  man  has  observed  that  there  are  families 
through  which  insanity  has  been  handed  doAvn  for  generations  ;  and 
why  should  the  probability  of  hereditary  madness  be  excluded,  when 
probabilities  in  other  cases  are  weighed,  especially  when  it  is  known 
that  a  proclivity  to  theft,  intemperance,  lying,  cheating,  and  almost 
all  other  moral  vices,  are  as  transmissible  as  gout,  consumption, 
deafness,  blindness,  and  almost  all  other  constitutional  diseases  ? 
It  is  supposed  by  the  million  that  insanity  is  a  disease  of  the  mind, 
not  of  the  body.  Uidiculous  !  If  it  were,  it  could  never  be  cured; 
for  the  mind  cannot  take  physic,  or  be  separately  treated ;  yet  the 
statistics  of  the  insane  exhibit  a  great  number  of  cures,  and  the 
time  is  fast  coming  when  insanity  will  be  considered  the  most 
manageable  disease  that  flesh  is  heir  to.  An  objection  to  an  inqui- 
sition which  does  not  disclose  the  specific  nature  of  the  ancestor's 
infirmity  might  stand  in  a  difl'erent  light;  but  testimony  which  brings 
the  fact  of  madness  home  to  him  ought  to  be  received  like  evidence 
of  family  likeness,  which,  though  less  reliable,  was  allowed  to  be 

•  Taylor  on  Med.  Jurisp.  502. 

311 


§  374.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

corroborative  proof  of  paternity  in  the  Douglas  Peerage  case,  in 
1767,  and  again  in  the  Townsend  Peerage  case,  in  1843.  Lord 
Mansfield  said,  in  the  former,  that  he  had  always  considered  like- 
ness as  an  argument  of  a  child  being  the  son  of  a  parent ;  that  a 
man  may  survey  ten  thousand  people  before  he  sees  two  faces  ex- 
actly alike,  and  that  in  an  army  of  a  hundred  thousand  men,  every 
man  may  be  known  from  another  ;  that  if  there  should  be  a  likeness 
in  feature,  there  may  be  a  difference  in  the  voice,  gesture,  or  other 
characters  :  whereas  family  likenesses  run  generally  through  all  of 
these  ;  for  that  in  everything  there  is  a  resemblance,  as  of  feature, 
voice,  attitude,  and  action.  Might  he  not  have  added  the  diathesis 
of  the  brain?  He  doubtless  might,  if  the  point  had  been  mooted. 
In  prosecutions  for  bastardy,  the  practice  in  the  quarter  sessions 
was,  in  my  day,  not  exactly  to  give  the  child  in  evidence,  but  to 
put  it  before  the  jury,  sometimes  by  the  prosecutor,  and  sometimes 
by  the  putative  father.  But  ancestral  irregularity  in  the  action  of 
the  brain  is  more  frequently  transmitted  than  any  resemblance  in 
form  or  feature  ;  and  it  is  difficult  to  imagine  an  objection  to  evi- 
dence of  it  for  purposes  of  corroboration."^ 

§  374.  Taylor  thus  sums  up  the  recent  English  cases  on  this 
So  in  Eng-  point:  "In  the  case  of  Reg.  v.  Ross  Touchet,  1844, 
land.  tried  and  acquitted  on  the  ground  of  insanity,  for  shoot- 

ing a  man,  Maule,  J.,  held  that  evidence  that  the  grandfather  had 
been' insane  may  be  adduced,  after  it  had  been  proved  by  medical 
testimony  that  such  disease  is  often  hereditary  in  a  family.  It  was 
also  admitted  in  Oxford's  case,  the  prisoner  having  been  here  tried 
for  shooting  at  the  queen.^  This  kind  of  evidence  has,  however, 
been  frequently  rejected,  and  it  is  not  admitted  in  the  law  of  Scot- 
land.^ There  can  be  no  doubt,  from  the  concurrent  testimony  of 
all  writers  on  insanity,  that  a  predisposition  to  the  disease  is  fre- 
quently transmitted  from  parent  to  child  through  many  generations. 
The  malady  may  not  always  show  itself  in  such  cases,  because  the 
offspring  may  pass  through  life  without  being  exposed  to  any  excit- 
ing cause  ;  but  in  general  it  readily  supervenes  from  very  slight 
causes."* 

'  Smith  V.  Kramer,  1  Am.  Law  Reg.  ^  Gibson's  case,  Edinburgh,  Dee. 
353.  1844. 

2  Law  Times,  Oct.  26,  1844.  *  Taylor's  Med.  Jur.,  p.  555. 

812 


HOW   MENTAL    UNSOUNDNESS   IS    TO    BE   DETECTED.       [§  376. 


Evidence 
may  be 
given  of  in- 
sanity of 
collateral 
relation. 


§  375.  Evidence  of  this  class  is  not  to  be  limited  to  the  imme- 
diate relatives  of  the  patient.  Thus  in  Andrews'  case, 
before  the  supreme  court  of  Massachusetts,  in  1868, 
the  court  admitted  evidence  of  the  insanity  of  the  colla- 
teral issue  of  a  common  ancestor  of  the  defendant  three 
generations  back.^  It  is  clear  that  evidence  of  mental 
unsoundness  on  the  part  of  a  brother  or  sister  of  the  person  whose 
competency  is  in  question  is  admissible.^ 

§  876.  It  hag  been  ruled,  indeed,  in  North  Carolina,  that  where 
hereditary  insanity  is  offered  as  an  excuse  for  crime  (the  j^.  ^^g^  ^^^ 
case  before  the  court  was  murder),  there  must  be  proof  be  notorious 
that  the  insanity  was  notorious,  and  of  the  same  species  as  that 
with  which  other  members  of  the  family  have  been  afflicted.^ 

But  this  decision  cannot  be  sustained.  Insanity,  it  has  been  well 
said,  is  protean.  Sometimes  it  may  be  so  concealed  that  it  may 
escape  the  knowledge  of  all  but  the  closest  observers.  Often,  as 
has  been  seen,  it  changes  its  form  from  time  to  time  in  the  same 
individual ;  and  when  passing  from  parent  to  child  it  almost  always 
varies  its  type. 


1  Andrews'  trial,  pamphlet,  p.  135. 
Wh.  Crira.  Law,  §  65  ;  R.  v.  Tucket,  1 
Cox  C.  C.  103 ;  R.  v.  Oxford,  9  C,  &  P. 
525  ;  Smith  v.  Kramer,  1  Am.  L.  Rev. 
353  ;  Bradley  v.  State,  31  Ind.  492 ; 
State  V.  Felter,  25  Iowa,  67  ;  Com.  v. 
Rogers,  7  Met.  500.  See  also  Baxter  v. 
Abbott,  7  Gray,  81,  where  the  insanity 
of  uncles  was  allowed  to  be  shown,  and 
Com.  V.  Rogers,  7  Metcalf,  500.  So  in 
Christiana  Edmunds's  case,  in  London, 
Jan.  1872,  the  defendant  appears  to 
have  been  permitted  to  give  proof  of 
this  kind  without  limit  as  to  degree  of 
relationship.  The  law  is  thus  stated 
by  Judge  Thomas  in  Baxter  v.  Abbott, 
7  Gray,  81. 

"We  think  the  practice  has  been  to 
admit  evidence  of  insanity  in  the 
family.  We  think  the  practice  is  right 
in  principle.  It  rests  upon  the  ground 
of  the  hereditary  character  of  insanity  ; 
that  a  predisposition  to  the  disease  is 
frequently  transmitted  from  parent  to 


child.  With  such  predisposition  the 
malady  may  not  show  itself  in  the 
child,  for  the  child  may  not  be  exposed 
to  any  exciting  cause.  But,  with  such 
hereditary  taint,  insanity  supervenes 
from  slight  causes — causes  apparently 
wholly  inadequate  to  affect  the  mind 
without  the  predisposition.  In  making 
a  diagnosis  of  such  a  case,  we  suppose 
that,  among  the  first  questions  which 
would  be  put,  would  be  the  question 
whether  the  parents  of  the  patient 
were  or  had  been  insane.  With  the 
fact  that  father  or  mother  or  either  of 
them  had  been  insane,  that  ihemsanity 
had  appeared  in  them  at  about  the  same  age, 
and  in  the  same  form,  its  existence  in  the 
child  is  more  probable,  and  is  believed  on 
less  perfect  evidence.''''  S.  P.  People  v. 
Smith,  31  Cal,  466. 

2  People  V.  Garbutt,  17  Mich.  9. 

'  State  V.  Christmas,  6  Jones  (N.  C.) 
471. 

313 


§  378.]      MEXTAL   IJNSOUlSrDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§  377.  But  the  proof  of  hereditary  insanity  can  only  be  admitted 

as  cumulative  evidence,  and  the  insanity  of  ancestors  is, 

relatives  no   by  itself,  no   defence.^     Evidence    that  certain  causes 

de  ence,        niicfht  induce  insanity  is  not  admissible  without  layinsi; 
per  se.  ^  J  jo 

or  offering  to  lay  a  basis  of  proof  to  show  that  insanity 
actually  existed.^ 

4.    Conversation  and  deportment. 

§  378.    The  general  questions  relating  to  feigned  insanity  are 
distinctively  hereafter  noticed.^     One  or  two  cases  will 
often  diffi-     be  Sufficient  to  show  the  importance  of-  accurate  observa- 
tect"°  ^^'     tion  in  this  respect. 

"  A  parish  officer,  from  the  neighborhood  of  Middle- 
ton,  England,  took  a  lunatic  to  the  asylum,  pursuant  to  an  order 
signed  by  two  magistrates.  As  the  man  was  respectably  con- 
nected, a  gig  was  hired  for  the  purpose,  and  he  was  persuaded  that 
it  was  merely  an  excursion  of  pleasure  on  which  he  was  going.  In 
the  course  of  the  journey,  however,  something  occurred  to  arouse 
the  suspicions  of  the  lunatic  with  respect  to  his  real  destination : 
but  he  said  nothing  on  the  subject,  made  no  resistance,  and  seemed 
to  enjoy  his  jaunt.  When  they  arrive  d  at  Lancaster,  it  was  too 
late  in  the  evening  to  proceed  to  the  asylum,  and  they  took  up 
their  quarters  for  the  night  at  an  inn.  Yery  early  in  the  morning 
the  lunatic  got  up  and  searched  the  pockets  of  the  officer,  where  he 
found  the  magistrate's  order  for  his  own  detention,  which,  of  course, 
let  him  completely  into  the  secret.  With  that  cunning  which  mad- 
men not  unfrequently  display,  he  made  the  best  of  his  way  to  the 
asylum,  saw  one  of  the  keepers,  and  told  him  that  he  had  got  a  sad 
mad  fellow  down  at  Lancaster,  whom  he  should  bring  up  in  the 
course  of  the  day,  adding :  '  He's  a  very  queer  fellow,  and  he  has 
got  very  odd  ways.  For  instance,  I  should  not  wonder  if  he  was 
to  say  I  was  the  madman,  and  that  he  was  bringing  me  :  but  you 
must  take  good  care  of  him,  and  not  believe  a  word  that  he  says.' 

1  Snow  V.  Benton,  28  IlL  306.     Such  2  Sawyer  v.  State,  35  Ind,  SO;  Brad- 
evidence,  it  has  been  held,  is  not  com-  ley  v.  State,  31  Ind.  492. 
petent  until  evidence  of  the  defendant's  ^  ggg   infra,  §§  443-460;   and   as  to 
own  insanity  has  been  given.     Laros  change   of  character  and   disposition, 
V.   Com.,   84  Pa.  200.     See  People  v.  see  infra,  §  390. 
Pine,  2  Barb.  566. 

314 


HOW   MENTAL    UNSOUNDNESS    IS    TO    BE   DETECTED.       [§  378. 

The  keeper  of  course  promised  compliance,  and  the  lunatic  walked 
back  to  the  inn,  where  he  found  the  officer  still  fast  asleep.  He 
awoke  him,  and  they  sat  down  to  breakfast  together.  '  You're  a 
lazy  fellow  to  be  sleeping  all  day  ;  I  have  had  a  long  walk  this 
morning,'  says  the  lunatic.  '  Indeed,'  says  the  oflBcer,  '  I  should 
like  to  have  a  walk  myself  after  breakfast ;  perhaps  you  will  go 
with  me  ?'  The  lunatic  assented,  and  after  breakfast  they  set  out, 
the  officer  leading  the  way  toward  the  lunatic  asylum,  intending  to 
deliver  his  charge  ;  but  it  never  occurred  to  him  to  examine  whether 
his  order  was  safe.  When  they  got  within  sight  of  the  asylum  the 
lunatic  exclaimed,"  '  What  a  fine  house  that  is  !'  '  Yes,'  said  the 
officer,  '  I  should  like  to  see  the  inside  of  it.'  '  So  should  I,'  ob- 
served the  lunatic.  '  Well,  I  dare  say  they  will  let  us  through — I 
will  ask,'  was  the  response.  They  went  to  the  door;  the  officer 
rang  the  bell,  and  the  keeper  whom  the  lunatic  had  previously  seen 
made  his  appearance,  with  two  or  three  assistants.  The  officer  then 
began  to  fumble  in  his  pockets  for  the  order,  when  the  lunatic  pro- 
duced it,  and  gave  it  to  the  keeper,  saying,  '  This  is  the  man  whom 
I  spoke  to  you  about.  You  will  take  care  of  him  ;  shave  his  head, 
and  put  a  strait  waistcoat  on  him.'  The  men  immediately  laid 
hands  on  the  poor  officer,  who  vociferated  loudly  that  the  other 
was  the  madman,  and  he  the  officer ;  but,  as  this  only  confirmed  the 
story  previously  told  by  the  lunatic,  it  did  not  at  all  tend  to  procure 
his  liberation.  He  was  taken  away,  and  became  so  indignantly 
furious  that  the  strait  waistcoat  was  speedily  put  upon  him,  and 
his  head  was  shaved,  secundum  artem.  Meanwhile,  the  lunatic 
walked  deliberately  back  to  the  inn,  paid  the  reckoning,  and  set 
out  on  his  journey  homeward.  The  good  people  in  the  country 
were,  of  course,  surprised  on  seeing  the  wrong  man  return ;  they 
were  afraid  that  the  lunatic,  in  a  fit  of  frenzy,  had  murdered  the 
officer,  and  they  asked  him  with  much  trepidation  what  he  had 
done  with  Mr.  Stevenson.  '  Done  Avith  him  ?'  said  the  madman, 
'why,  I  left  him  at  the  Lancaster  Asylum,  as  mad  as  a  fury!' 
which,  indeed,  was  not  very  far  from  the  truth  ;  for  the  wits  of  the 
officer  were  wellnigh  upset  by  his  unexpected  detention  and  sub- 
sequent treatment. 

"  Further  inquiry  was  forthwith  made  by  his  neighbors,  and  it 
was  ascertained  that  the  man  was  actually  in  the  asylum.  X  ma- 
gistrate's order  was  produced  for  his  liberation ;  and  he  returned 

315 


§  379.]      MENTAL  UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

home  with  a  handkerchief  tied  round  his  head  in  lieu  of  the  cover- 
ing which  nature  had  hestowed  upon  it."^ 

§  379.  "  I  was  requested,"  says  Dr.  Winslow,  "  to  see  a  gentle- 
Often  only  naan  who  was  said  to  be  suicidally  insane.  Upon  in- 
outs?de'^ci7  I^^^J'  ^  ascertained  from  good  authority  that  under  the 
cumstances  influence  of  the  most  distressing  hallucinations  he  had 
attempted  to  hang  himself.  The  patient  firmly,  earnestly,  and  ap- 
parently with  great  truthfulness,  resolutely  and  repeatedly  denied 
the  fact.  He  declared  it  was  an  invention — a  pure  creation  of  the 
imagination,  originating  with  the  family ;  that  he  was  happy,  sub- 
ject to  no  depression,  had  a  strong  wish  to  live,  and  great  fear  of 
death.  I  examined  him,  in  conjunction  with  another  physician,  and 
neither  of  us  could  seize  hold  of  the  salient  point,  or  satisfy  him- 
self that  the  man  was  actually  insane.  But,  we  asked  ourselves, 
what  motive  could  his  family  have  for  thus  misrepresenting  the  facts 
of  the  case  ?  We  felt  quite  assured,  from  the  character  of  the  evi- 
dence presented,  that  an  attempt  at  suicide  had  been  made  ;  but 
the  patient,  with  an  ingenuity  which  would  have  reflected  credit 
upon  a  nisi  prius  lawyer,  parried  with  great  skill  all  the  questions, 
and  gave  such  prompt  and  happy  replies  to  our  anxious  interroga- 
tories, that  we  were  compelled  to  admit  ourselves,  for  a  time,  per- 
fectly defeated.  By  a  course  of  conversation  I  drew  the  gentle- 
man's thoughts  into  a  different  channel ;  and,  whilst  my  attention 
was  directed  apparently  elsewhere,  I  kept  a  close  watch  upon  his 
movements.  I  perceived,  as  I  imagined,  some  kind  of  instrument 
projecting  from  his  pocket.  He  perceived  that  my  eyes  were 
directed  to  this,  and  he  immediately  expressed  a  wish  to  leave  the 
apartment.  I  at  once  said,  '  I  cannot  permit  you  to  do  so  until  I 
know  what  you  have  concealed  in  your  trowsers  pocket.'  He  at 
once  manifested  signs  of  embarrassment  and  excitement,  and,  rising 
rapidly  from  his  seat,  endeavored  to  rush  out  of  the  door.  He  was 
immediately  prevented  from  doing  so,  and  his  pockets  emptied,  and 
a  razor  discovered.  In  his  pocket-book  a  letter  Avas  found,  ad- 
dressed to  the  coroner,  intimating  to  him  that  he  was  pursued  by 
an  evil  spirit,  and  this  impression  had  driven  him  to  commit  an  act 
of  self-destruction.     Fortunately  for  our  own  reputation  and  the 

'  Mancliester  (England)  Guardian. 

316 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  379. 

patient's  life,  this  providential  discovery  was  made.*  It  may  be 
necessary  to  see  and  examine  the  patient  on  more  than  one  occasion 
before  the  physician  is  satisfied  as  to  the  actual  state  of  his  mind. 
In  cases  of  doubtful  character,  I  would  suggest  that  this  course 
should  invariably  be  adopted,  taking  the  necessary  precaution  to  re- 
commend close  vigilance  during  the  interregnum.  I  suggest  this 
course,  in  consequence  of  my  being  acquainted  with  the  case  of  a 
lady,  whose  removal  from  home  was  for  a  few  days  temporarily 
postponed,  in  compliance  with  the  cautious  and  judicious  advice  of 
the  medical  man,  who  admitted  that  he  could  not  detect,  according 
to  his  apprehension,  sufficient  evidence  of  insanity  to  justify  him  in 
signing  the  certificate.  During  the  interim  she  succeeded  in  de- 
stroying herself.  In  a  few  instances  we  are  justified  in  partially 
acting  upon  the  representations  of  the  family  and  friends  of  the 
alleged  lunatic.  If  a  delusion  be  detected,  it  must  be  referred  to ; 
and,  if  the  patient  has  committed  any  overt  act  of  violence,  or  mani- 
fested a  suicidal  disposition,  it  is  our  duty  to  refer  to  these  facts, 
guarding  ourselves  by  stating  that  we  derive  such  information 
from  parties  immediately  around  the  patient.  It  is  important  in 
all  cases  to  specify  the  character  of  the  existing  delusion.  The 
expression  of  a  belief  in  the  fact  of  delusive  ideas,  and  of  the  pres- 
ence of  abstract  insanity  without  a  specification  of  facts,  renders  a 
medical  certificate  invalid.  I  have  often  seen  certificates  worded 
to  this  efiect :  '  I  have  formed  my  opinions  from  the  fact  of  the 
party  being  insane' — '  being  under  delusions' — '  being  excited' — 
'  being  violent.'  These  generalizations  should  be  carefully  avoided  ; 
the  more  concise  the  account  of  the  patient's  condition,  the  closer 

•  "  It  is  only  in  having,"  says  Orfila,  be  necessary  to  influence  their  opinion. 
"  an  acquaintance  with  the  whole  life  In  a  report,  they  should  not  confine 
of  an  individual,  in  weighing  and  com-  themselves  to  a  simple  opinion  upon 
paring  every  fact,  that  in  some  cases,  the  state  of  the  person  who  is  the  sub- 
we  can  pronounce  with  certainty  upon  ject  of  it,  but,  of  necessity,  should  go 
his  actual  moral  state.  It  is  in  inter-  into  details  upon  the  facts  observed,  in 
rogating  the  past  that  we  acquire  a  order  that  the  same  piece  may  be  sub- 
knowledge  of  the  present."  The  same  mitted  to  the  examination  of  new  ex- 
author  also  states,  that,  when  an  perts.  Tlie  employment  of  all  the 
opinion  is  asked  from  physicians  upon  means  indicated  does  not  always  lead 
the  actual  state  of  an  accused  person,  to  a  positive  result,  and  sometimes  we 
they  ought,  in  the  examination  of  his  are  to  remain  in  doubt. — Med.  Leg., 
previous  conduct,  to  understand  what  Orfila,  tome  i.  p.  400.  Paris,  1848. 
act  is  imputed  to  him,  if  that  should 

317 


§  380.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

will  it  be  in  unison  with  the  expressed  wish  of  the  commissioners 
in  lunacy.  The  record  of  one  clear  and  unmistakable  delusion  is 
quite  sufficient  for  all  legal  purposes.  But  cases  do  occur  where 
no  delusion  can  be  detected,  and  yet  confinement  may  be  absolutely 
necessary.  Under  such  circumstances  it  is  the  duty  of  the  medical 
man  to  enter  more  into  detail  as  to  the  facts  of  the  case.  Perhaps 
I  may  be  excused  for  suggesting,  that,  in  every  instance  of  this 
kind,  the  parties  should  keep  copies  of  their  certificates."^ 

§  380.  A  man  mentioned  by  Pinel,  who  had  been  for  some  time  ' 
Insanity  confined  in  the  Bicetre,  was,  on  the  visitation  of  a  com- 
sometimes  missary,  ordered  to  be  discharged  as  perfectly  sane,  after 
rent  on  one  a  long  conversation  in  which  he  had  conducted  himself 
with  the  greatest  propriety.  The  officer  prepared  the 
proch  verbal  for  his  discharge,  and  gave  it  to  him  to  put  his  name 
to  it,  when  he  subscribed  himself  Jesus  Christ,  and  then  indulged 
in  all  the  reveries  arising  from  that  delusion.  Lord  Erskine  gives 
a  very  remarkable  history  of  a  man  who  indicted  Dr.  Monro  for 
confining  him  without  cause  in  a  madhouse.  He  underwent  the 
most  rigid  examination,  by  the  counsel  of  the  defendant,  without 
discovering  any  appearance  of  insanity,  until  a  gentleman  came  into 
court  who  desired  a  question  to  be  put  to  him  respecting  a  princess 
with  whom  he  had  corresponded  in  cherry-juice.  He  immediately 
talked  about  the  princess  in  the  most  insane  manner,  and  the  cause 
was  at  an  end.  But,  this  having  taken  place  in  Westminster,  he 
commenced  another  action  in  the  city  of  London,  and  on  this  occa- 
sion no  effort  could  induce  him  to  expose  his  insanity ;  so  that  the 
cause  was  dismissed  only  by  bringing  against  him  the  evidence 
taken  at  Westminster.  On  another  occasion.  Lord  Erskine  ex- 
amined a  gentleman  who  had  indicted  his  brother  for  confining  him 
as  a  maniac,  and  the  examination  had  gone  on  for  great  part  of  a 
day  without  discovering  any  traces  of  insanity.  Dr.  Sims  then 
came  into  court,  and  informed  the  counsel  that  the  gentleman  con- 
sidered himself  as  the  Saviour  of  the  world.  A  single  observation, 
addressed  to  him  in  this  character,  showed  his  insanity,  and  put  an 
end  to  the  cause.  Many  similar  cases,  says  Abercrombie,  are  on 
record.  Several  year  ago,  a  gentleman  in  Edinburgh,  who  was 
brought  before  a  jury  to  be  cognosced,  defeated  every  attempt  of 

'  Winslow  on  Medico-Legal  Ev.  153, 

318 


HOW    MENTAL    UNSOUNDNESS    IS    TO    BE   DETECTED.       [§  383. 

the  opposite  counsel  to  discover  any  traces  of  insanity,  until  a  gen- 
tleman came  into  court,  who  ought  to  have  been  present  at  the 
beginning  of  the  case,  but  had  been  accidentally  detained.  He  im- 
mediately addressed  the  patient  by  asking  him  what  were  the  latest 
accounts  from  the  planet  Saturn,  and  speedily  elicited  ample  proof 
of  insanity.^ 

§  881.  M.  Orfila  states,  that  deranged  persons  who  are  conscious 
of  their  condition,  and  who  yet  preserve   some  control    Or  entirely 
over  themselves,  will  answer  correctly  all  questions  that    '^o'^ceaied. 
are  addressed  to  them,  and  Avill  not  betray  their  condition  if  they 
have  an  interest  in  concealing  it.^ 

§  882.  Mr.  David  Paul  Brown  gives  us  the  following  illustration 
of  this  same  craftiness  :    M.,  having  written  a  letter  from 

lustRncGS 

the  asylum,  made  up  of  patches  of  Latin,  Greek,  French,    of  ciaiti- 
and  German,  and  manifesting  most  clearly  a  disordered   fu^^tkig 
mind,  upon  escaping  from  his  confinement  desired  counsel 
to  institute  an  action  for  false  imprisonment,  against  the  managers. 
"I  shall  do  no  such  thing,"  said  the  lawyer  (handing  him  the 
letter) ;  "  look  at  that,  and  tell  me  whether  a  sane  man  ever  wrote 
such  a  letter."     Upon  which,  bursting  into  a  laugh,  the  madman 
said,  "  That  indeed  does  look  as  if  I  were  insane  ;  but  I  wrote  it 
purposely  in  that  way,  because  I  knew  if  it  had  been  reasonable, 
and  the  managers  had  opened  it,  as  they  always  do,  they  never 
would  have  allowed  it  to  reach  its  address."^ 

§  883.  Lord  Chancellor  Loughborough  once  ordered  a  man  to 
be  brought  before  him,  against  whom  his  heirs  wished  to  take  out  a 
commission  of  lunacy.  lie  examined  him  and  put  various  questions 
to  him,  to  which  he  made  the  most  pertinent  answers.  "  This  man 
mad !"  thought  he,  "  verily  he  is  one  of  the  ablest  men  I  ever  met 
with."  Toward  the  end  of  the  examination,  hoAvever,  a  little  scrap 
of  paper  was  put  into  his  hands  on  which  was  written  "  Ezekiel." 
This  was  enough  for  such  a  shrewd  and  able  man  as  his  lordship. 
He  took  his  cue.  "  What  fine  poetry,"  said  the  chancellor,  "  is  in 
Isaiah!"  "Very  fine,"  replied  the  man,  "especially  when  we 
read  in  tlie  original  Hebrew."     "And  how  well  Jeremiah  wrote!" 

1  Abercrombie   on    the    Intellectual         ^  Med.  Leg.,  M.  Orfila,  tome  i.  p.  39(J. 
Powers,    pp.    253,    254;    see    also    §§     Paris,  1848. 
86-92.  3  2  Brown's  Forum,  p.  478. 

319 


§  384.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

"  Surely,"  said  the  man.  "  What  a  genius,  too,  was  Ezekiel !" 
"  Do  you  like  him  ?"  said  the  man  ;  "  I'll  tell  you  a  secret,  I  am 
Ezekiel!" 

§  384.  Cunning  may  run  coincidently  with  insanity  for  a  long 
series  of  years,  and  may,  in  a  certain  stealthy  furtive- 
may  be  a  ness,  be  one  of  the  forerunners  of  insanity.  "This 
of^nsanity  ^^^i^^gs  US  to  another  phase,"  says  the  writer  of  an  intel- 
ligent survey  of  the  reign  of  George  III.,  in  the  London 
Spectator  of  April  27, 1872,  "  in  the  character  of  George  III,  We 
have  seen  that  Lord  Waldegrave  speaks  of  his  want  of  frankness. 
It  is  prohable  that  the  hrooding  temperament  and  hidirectness  of 
conduct  which  are  among  the  least  pleasing  of  G-eorge! s  character- 
istics ivere  closely  connected  ivith  the  mental  disease  to  which  he 
had  a  constant  tendency.  Secretiveness  and  cunning  are  usually 
marked  features  in  an  organization  so  affected,  and  the  suspicious- 
ness of  others  and  the  strong  and  irrational  likes  and  dislikes  which 
are  main  operating  causes  in  such  a  nature  produce,  as  a  neces- 
sary result,  dissimulation  and  crafty  underhand  intrigue.  When 
George,  then,  found  that  his  violent  declarations  and  overbearing 
wilfulness  produced  no  effect,  he  restrained  his  morbid  impatience 
(although  his  reason  on  several  occasions  tottered  and  even  tem- 
porarily succumbed  under  the  effort),  and  endeavored  to  attain  his 
ends  by  cunning  watchfulness  of  opportunities.  He  acquiesced  out- 
wardly in  the  change  of  advisers  and  abandonment  of  cherished 
policy,  and  then  set  to  work  to  undermine  the  position  of  the 
intrusive  counsellors,  and  to  thwart,  as  much  as  he  could  venture 
to  do,  the  development  of  their  plans.  He  intrigued,  in  fact, 
against  the  ministers  he  could  not  meet  openly,  and  waited  for  the 
moment  when  he  could  safely  dismiss  them  again  with  ignominy. 
Hence  arose  the  political  phenomenon  which  went  under  the  name 
of  '  The  King's  Friends' — a  set  of  men  who  formed  a  backstairs 
anti-cabinet,  the  object  of  which  was  to  employ  the  king's  name 
and  the  influence  of  his  personal  sentiments  in  organizing  an  oppo- 
sition to  his  ostensible  cabinet  advisers,  both  in  parliament  and  in 
the  country  at  large.  It  must  not  be  supposed  by  this  that  there 
was  any  regularly  constituted  '  cabal,'  or  any  precisely  defined 
plan  of  operation  for  its  guidance  ;  but  there  were  nearly  always 
throughout  the  reign  of  George  III.  two  or  three  men — generally 
not  men  of  high  ability,  but  busy,  gossiping  intriguers,  who  were 
320 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  384- 

irresponsible,  and  both  unavowed  and  often  disavowed  agents  in 
making  known  what  the  king's  real  wishes  were.  With  the  assist- 
ance of  such  men,  and  by  a  careful  observation  of  the  variations  in 
the  public  sentiment,  George  achieved  a  success  in  his  plans  of 
personal  government  which,  if  we  remember  the  relative  position  of 
the  crown  and  parliament  at  the  commencement  of  his  reign,  seems 
at  first  marvellous.  In  the  course  of  this  protracted  struggle,  the 
king  had  to  undergo  many  mortifications  and  not  a  few  seemingly 
fatal  checks,  but  he  always  bent  to  the  storm  in  time,  and  generally 
knew  when  and  how  long  to  maintain  an  inflexible  position.  Nothing 
but  this  superior  cunning  and  adroitness  could  have  saved  him  from 
a  great  civil  convulsion  such  as  that  which  destroyed  his  prede- 
cessors in  this  path  of  royal  aggrandizement,  Charles  I.  and  James 
II.  George  III.,  however,  had  concentrativeness  of  action  as  well 
as  persistence  of  purpose,  and,  however  tortuous  his  paths  were  at 
times,  the  tone  and  direction  of  his  policy  were  always  consistent, 
and  no  one  had  ever  cause  to  suspect  him  for  a  moment  of  having 
become  a  convert  to  Whig  constitutional  notions,  although  he  might 
tolerate  for  a  time  Whig  ministers,  and  even  (as  in  the  case  of  his 
concessions  to  the  revolted  American  colonies  and  his  ultimate 
acknowledgment  of  their  independence)  adopt  Whig  measures  and 
Whig  policy.  This  persistent  uniformity  of  sentiment,  suspended 
in  action  from  time  to  time  by  the  necessities  of  his  position,  but 
always  reappearing  again  to  the  public  eye,  produced  by  degrees  a 
great  and  lasting  effect  on  the  public  mind." 

Mr.  A.  amassed  a  large  fortune  in  Philadelphia,  in  a  few  years, 
as  a  carriage  builder.  He  had  an  extraordinary  degree  of  skill, 
among  other  things,  in  poising  and  adjusting  the  springs  and 
weights  of  a  carriage,  and  in  uniting,  in  remarkable  perfection, 
beauty  and  lightness  with  strength.  As  his  business  increased,  he 
would  be  occupied  during  large  portions  of  the  night,  as  he  lay 
sleepless  in  his  bed,  by  calculations  as  to  how  these  adjustments 
could  be  best  secured.  In  the  spring  of  1855,  he  engaged  in  real 
estate  speculations,  in  which  he  speedily  showed  that  his  mind  was 
becoming  unbalanced.  He  negotiated,  or  pretended  to  negotiate, 
for  a  large  and  immensely  valuable  lot  of  ground,  intimating  that 
he  expected  it  to  be  occupied  by  Queen  Victoria  in  a  visit  that  she 
was  projecting.  Then  he  turned  his  attention  to  live  stock,  taking 
measures  to  purchase  a  vast  number  of  cows,  on  the  plea,  he  said, 
VOL.  I.— 21  321 


§  384.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOaiCALLY. 

of  an  expected  rise  in  the  price  of  milk.  His  family  petitioned  for 
a  commission  of  lunacy,  which  was  granted,  and  the  present  writer 
was  appointed  commissioner.  While  the  case  was  on  hearing,  it 
was  agreed  on  both  sides  that  to  give  every  opportunity  for  re- 
covery, as  well  as  to  secure  greater  certainty  in  the  result,  Mr.  A. 
should  be  permitted  to  travel  for  a  few  months,  under  the  charge 
of  two  parties  in  whom  he  personally  had  confidence.  The  experi- 
ment was  made,  and  two  remarkable  facts  were  established.  The 
first  was  that  he  was  possessed  by  certain  insane  delusions,  which 
destroyed  his  capacity  for  managing  his  estate.  The  second  was 
that  he  was  conscious  that  he  was  under  watch,  and  that  these 
delusions,  if  shown  to  exist,  would  lead  to  the  pending  trial  being 
decided  adversely  to  his  sanity.  Nothing  could  exceed  the  adroit- 
ness and  tact  with  which,  on  the  one  hand,  he  pursued  these  delu- 
sions, and,  on  the  other  hand,  sought  to  conceal  or  mask  them 
from  his  attendants.  It  seems  that,  besides  wanting  to  purchase 
all  the  live  stock  he  met,  he  had  a  fancy  that  these  creatures  were 
rational.  He  accordingly  addressed  notes  to  "  a  gray  mare,"  or 
"  a  black  horse,  which  I  met  in  such  a  place,"  and,  in  seeking  to 
get  these  notes  to  their  intended  destination,  he  used  the  adroitness 
and  finesse  of  a  subtle  diplomatist.  Then,  when  the  fact  was  dis- 
covered, he  would  laugh  it  off,  with  the  utmost  coolness,  as  a  prac- 
tical joke  attempted  by  him  on  his  guardians.  When  the  case  was 
brought  up  for  a  final  hearing,  he  not  merely  went  successfully 
through  the  test  of  a  protracted  and  thorough  examination,  but 
cross-examined  the  witnesses  himself,  and  made  a  long,  able,  and 
artful  speech,  in  which  he  endeavored  to  explain  away  all  the  facts 
that  admitted  of  a  doubtful  construction.  As  to  those  which  were 
unequivocally  irrational,  he  took  a  ground  something  like  the  fol- 
lowing :  "  You  know,  gentlemen  of  the  jury,  being  business  men 
yourselves,  how  acutely  one  who  has  been  immersed  all  his  life  in 
a  business  in  which  he  delights,  and  of  which  he  may  be  justly 
proud,  must  feel  when  suddenly  dragged  from  that  business,  forced 
to  compulsory  idleness,  and  dogged  by  men  who  he  knows  are 
seeking  to  entrap  him  into  something  which  will  prove  him  a  lunatic. 
You  can  easily  see  how,  under  such  circumstances,  a  man  might 
resort  to  imaginary  business,  such  as  the  world  resorts  to  in  its 
fashionable  sports  and  games,  to  fill  the  void  of  real.  You  can 
understand,  also,  how  he  might  attempt  practical  jokes  to  see  how 
322 


DOW   MENTAL   UNSOUNDNESS   IS   TO    BE    DETECTED.       [§  385. 

far  the  gullibility  of  his  keepers  may  go,  and,  since  they  wish  to 
stare,  lay  traps  to  give  them  something  to  stare  at." 

Notwithstanding  this  defence,  which  for  coolness,  coherence,  and 
appropriateness  the  sanest  advocate  could  with  diflSculty  have  ex- 
celled, Mr.  A.  was  found  by  the  jury  to  be  a  lunatic,  and  was  re- 
manded by  the  court  to  the  Pennsylvania  Hospital  for  the  Insane. 
There  his  insanity  became  unrestrained  and  unmistakable  ;  and  a 
few  weeks  after,  during  the  momentary  absence  of  an  attendant, 
he  killed  himself  by  cutting  his  throat.^ 

§  385.  Yet,  notwithstanding  this  capacity  for  occasional  conceal- 
ment, the  abnormal  condition  of  lunatics  will,  if  they  are    ^  , 

'  '  ''  But  sooner 

sufficiently  watched,  sooner  or  later  break  out.^     "To    or  later 

dctGctcd 

the  manifestation,"  says  Griesinger,  "of  such  (abnormal) 
desires,  to  the  free  disclosure  of  tendencies  which  are  generally 
concealed,  to  certain  morbid  impulses,  may  be  referred  much  of  the 
peculiarity  Avhich  distinguishes  the  conduct  of  the  insane.  Each 
has  its  analogy  in  healthy  life,  partly  in  those  peculiar  habits  and 
caprices  which  are  occasionally  observed  as  curious  appendages  to 
great  and  energetic  intellects  (which  form  the  materials  of  many 
anecdotes  relating  to  learned  men),  partly  in  the  directions  of  the 
will  and  modes  of  action  of  the  passions  and  emotions.  These  in 
detail  afford  materials  for  numerous  comparisons,  and  we  find  in 
the  poets  who  dwell  much  on  the  emotional  states  numerous  analo- 
gies by  way  of  example. 

"  Thus,  when  the  melancholic  has  the  impulse  to  leave  his  home, 
and  roam  in  the  open  air,  because  it  appears  too  confined  for  him, 
and  because  he  expects  alleviation  from  his  state  of  internal  pain 
by  outward  disquiet  and  change,  so  the  same  appears  in  cases  of 
real  mental  pain,  where  the  sufferer  spends  his  life  in  the  open  air, 
or  even  in  distant  lands,  in  the  world,  in  order  to  recover  internal 
calm  by  outward  disquiet  and  restlessness.  Eichendorff  has  well 
expressed  this  disposition  in  one  of  his  well-known  songs. "^ 

The  presumptions  belonging  to  change  of  character  and  disposi- 
tion are  subsequently  discussed.^ 


4 


'  See  infra,  §§  457,  458.  3  Grlesinger's  Mental  Pathol.,  Sydeii. 

8  See  infra,  §  459.  ed.  (1867),  §  47. 

<  Infra,  §  390. 

323 


§  387.]       MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

5.    Writings. 
§  386.  The  method  of  testing  conversation  and  conduct  when  a 
^  question  of  insanity  arises  is  discussed  at  large  under 

Correspon-      ^  ♦^  _  °  _ 

denceofthe   other  heads.    It  is  proper  here  to  notice  of  what  peculiar 


insane  a 


valuable       value  Writings,  emanating  from  the  supposed  insane  per- 
^^  ■  son,  are  as  a  criterion. 

"  Delusions  are  sometimes  cunningly  concealed  for  a  length  of 
time,"  says  Dr.  Winslow,  "  and,  notwithstanding  we  are  certain 
that  they  exist,  no  amount  of  ingenuity  will  induce  the  patient  to 
disclose  them,  particularly  if  made  aware  of  the  object  of  our  visit. 
I  had  been  recently  to  see  a  lady  whose  insanity  was  manifested  in 
a  remarkable  degree  in  her  every  action ;  but,  after  paying  her 
several  visits,  I  found  it  impossible  to  induce  her  to  exhibit  any  one 
delusive  impression  or  insane  idea ;  but  no  sooner  had  I  left  the 
room  than  her  conversation  and  conduct  became  outrageously  insane. 
Many  insane  persons  are  able  to  talk  with  apparent  rationality,  but 
cannot  write  without  exhibiting  their  insanity.  I  have  examined 
recently  one  very  remarkable  case  of  this  kind,  in  a  clever,  well- 
read,  and  intellectual  woman,  whom  I  had  occasion  to  visit.  I 
never  could  detect  the  slightest  aberration  of  mind  in  her  conversa- 
tion, and  yet  almost  invariably,  upon  my  leaving,  she  placed  in  my 
hands  a  letter  (which  had  been  written  previous  to  my  calling)  full 
of  the  most  absurd  extravagances  and  fancies  ;  accusing  strangers, 
myself,  and  members  of  her  family  of  being  engaged  in  deeply  con- 
cocted conspiracy  against  her  property  and  life.  Several  of  these 
peculiar  and  interesting  cases  are  recorded,  and  the  medical  man 
has  been  advised,  with  a  view  of  obtaining  an  insight  into  the  true 
condition  of  the  mind,  to  open  a  correspondence  with  the  supposed 
lunatic,  upon  the  principle  that  few  persons  positively  insane  can, 
for  any  length  of  time,  write  without  exhibiting  their  delusions, 
whatever  amount  of  self-control  they  are  able  to  exercise  over  their 
thoughts  and  morbid  ideas  during  protracted  conversation."^ 

§  387.  The  value  of  letters  or  other  writings,  as  tests 
handwrit-  of  insanity,  has  been  shown  by  abundant  illustrations 
wfii^afcon-  ^y  Marc^,  in  a  monograph  on  this  particular  topic .^  To 
tents.  these  might  be  added  a  series  of  cases,  English  and 

*  Winslow  on  Med.  Leg.  Ev.  108.  au  point  de  vue  de  la  semilogie  et  de 

2  De  la  valeur  des  ecrits  des  alien^s     la  Med.  legale,  1864. 

324 


HOW    MENTAL   UNSOUNDNESS   IS    TO    BE   DETECTED.       [§  388. 

American,  in  which  the  insanity  of  testators  and  of  obligors  has  been 
in  a  large  degree  determined  by  the  characters  of  written  docu- 
ments emanating  from  them.  Nor  is  such  evidence  without  its 
worth  in  criminal  prosecutions,  especially  where  the  question  is 
whether  insanity  is  genuine  or  simulated.  It  is  not  merely  the 
contents  of  writings  that  contribute  to  the  decision  of  the  question. 
The  style  and  handwriting  often  supply  important  tests.  "  What  ex- 
perienced forensic  physician,"  asks  Liman,'  "  is  not  familiar  with  the 
writings  of  certain  classes  of  lunatics,  namely,  the  so-called  queru- 
lants,  writings  teeming  with  flourishes — words  and  sentences  itali- 
cized singly,  doubly,  or  trebly — with  parentheses,  interlineations, 
notes  of  quotation — writings  often  very  voluminous,  swollen  with 
citations  of  alleged  laws?"  In  other  cases  of  lunacy  are  noticed 
peculiar  modes  of  construction,  words  and  expression^  both  original 
and  incomprehensible,  such  as  are  familiar  to  every  psychological 
physician.  The  first  stages  of  paralysis  are  characterized  by  flighti- 
ness  of  writing,  omission  of  words  and  sentences,  blots,  etc.  But 
here,  again,  cautions  are  to  be  interposed.  There  have  been  some 
literary  men  of  eminence  who  have  been  unable  to  copy  a  page 
exactly,  and  others  who  constantly  leave  out  words  and  misspell. 
Proof-readers,  in  fact,  could  supply  on  this  topic  an  interesting 
chapter  to  the  curiosities  of  literature,  showing  what  eccentricities 
of  style  and  penmanship  mark  even  some  of  the  soberest  thinkers. 
On  the  other  hand,  lunatics  have  been  known  sometimes  to  write  a 
sequence  of  letters  in  which  no  mark  of  eccentricity  appears.  But 
this  can  only  be  for  a  time.  Familiar  letters,  written  at  periods 
when  the  patient  conceives  himself  unwatched,  will  in  the  long  run 
necessarily  give  marks  by  which  the  experienced  observer  will  de- 
tect insanity  where  it  exists. 

6.  Prior  history. 

§  388.  This  topic  has  already  been  referred  to  incidentally,  and 
will  be  again  noticed  in  another  relation.^     It  is  enough 

1  r»  n  •  •  L    •  1         All  prior 

now  to  say  that  alter  some  fluctuations,  it  is  now  the    history  is 
settled  rule,  that  all  events  in  the  patient's  prior  history,   evi'deiTce.^ 
and  all  traits  in  his  character,  past  or  present,  tending 
to  show  an  insane  taint  in  his  constitution,  are  admissible  in  evi- 


»  Liman's  Casper,  1871.  *  See  infra,  §  391. 

325 


§3S9a.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

dence.  His  own  declarations  may  be  adduced  for  this  purpose  in 
his  own  defence,  though  when  such  declarations  are  recent,  and  are 
open  to  the  suspicion  of  being  manufactured  for  the  purpose,  they 
are  to  be  severely  scrutinized.^ 

7.  Nature  of  the  act. 

(a)  Its  insensibiUtt/ . 

§  389.  "  In  foro  medico,"  as  is  well  remarked  by  Schurmayer,^ 
T       ■<.         "a  derano-ement  of  the  mental  faculties  is  generally  to 

Insanity  o  . 

may  often      i,q  presumed  where  the  consciousness,  imagination,  and 

be  d.6tecte(i 

by  insensi-  sensual  apperception  or  impulse,  when  subjected  to  com- 
1 1 J  o  ac  ^^^  ^^^^  usual  provocations,  internal  or  external,  respond 
in  a  manner  diiferent  from  Avhat  they  would  in  a  normal  state.  But 
whether  a  certain  action,  undergoing  a  criminal  investigation,  was 
the  effect  of  a  diseased  mental  activity  of  the  subject,  and  com- 
mitted when  he  was  not  master  of  himself,  is  a  question  to  be  an- 
swered primarily  from  the  indicia  presented  by  the  action  itself, 
and  then  from  the  results  of  an  examination  of  the  accused,  in 
reference  to  his  physical,  moral,  and  mental  condition  before,  at, 
and  after  the  deed  in  question.  Illustrations  of  acts  whose  insen- 
sihility  can  be  received  to  show  the  irresponsibility  or  incompe- 
tency of  the  actor,  may  be  found  in  the  old  law  cases  of  a  legacy 
to  the  King  of  Siam,  and  of  an  executory  devise  to  all  the  chil- 
dren in  a  particular  parish  who  should,  in  a  specific  year,  be  born 
with  moles  on  their  faces.  The  presumption  of  irresponsibility 
would,  of  course,  attach  with  great  force,  under  similar  circumstances, 
to  criminal  acts  equally  insensible,  as  in  the  case  of  the  idiot  who 
was  found  putting  an  infant  brother  into  the  pot  to  boil  for  dinner." 
§  389a.  Liman,  in  his  (1871)  edition  of  Casper,^  gives  the  case 
of  a  peasant  woman,  who  for  years  had  been  suffering  from  mental 
disorders,  and  who  had  determined  to  kill  her  three  children  with 
her  husband's  razor.  For  this  purpose  she  took  the  razor  a  week 
before  the  time  she  had  selected,  and  hid  it.  But  the  razor  was 
the  only  one  her  husband  possessed  ;  and  that  he  would  call  for  it 
the  next  morning  after  its  abstraction  was  what  his  wife,  if  sane, 

'  See  Baxter  v.  Abbott,  7  Gray,  80  ;         2  §  522.     See  infra,  §  396. 
Andrews'  trial  (Sup.  Ct.  Mass.  1868),        »  Berlin,  1871,  p.  427. 
Pamph.  Rep.  124. 

326 


HOW   MENTAL   UNSOUNDNESS   IS    TO    BE    DETECTED.       [§  390. 

could  have  expected.     This  actually  took  place.     It  turned  out  she 

had  hid  the  razor  in  an  old  press,  that  was  always  open,  and  which 

for  years  had  had  no  key.    The  husband  naturally  found  the  razor, 

and  placed  it  on  the  shelf  where  it  generally  lay,  and  from  which 

the  unhappy  woman  took  it  the  moment  before  the  assault. 

§  3896.  But  two  cautions  are  to  be  observed  in  regard  to  the 

weight  of  this  kind  of  testimony.     Maniacs   (as  distin- 

.  .  .  „  .  But  mani- 

guished  from  imbeciles)  frequently  construct,  m  further-    acs  are 

f   ,y     •      •  1  1  c  •    .       J.    •  often  con- 

ance  oi  their  insane  schemes,  plans  oi  consistent  mge-    gjstent  and 
nuity.     As  an  illustration  of  this  may  be  mentioned  the    priminais 

•'  "^  irrational. 

case  of  Billman,  an  undoubted  maniac,  who  contrived  a 
noose,  on  the  inside  of  the  usual  aperture  at  the  top  of  the  door  of 
his  cell  through  which  the  attendants  were  in  the  habit  of  looking 
or  handing  in  food  ;  very  ingeniously  succeeded  in  inducing  an  at- 
tendant to  put  his  head  through,  and  then  caught  him  in  the  noose; 
and  then,  finding  this  device  unsuccessful,  subsequently  enticed  the 
same  attendant,  on  plea  of  sickness,  into  the  cell,  killed  him,  and 
then  changed  clothes  with  him ;  and  after  this  so  skilfully  adopted 
the  manner  proper  for  the  purpose,  that  he  walked  away  unsus- 
pected, and  was  not  arrested  until  he  was  out  in  the  street.  And 
cases  are  numberless  in  which  persons  laboring  under  insane  delu- 
sions have  executed  plans  based  on  these  illusions  with  the  most 
consummate  adroitness  and  persistency. 

So  the  converse  holds  good,  that  sane  persons,  when  working  out 
even  the  coolest  plans  of  mischief,  almost  invariably  drop  a  stitch 
or  expose  a  blot,  by  which  discovery  is  afterwards  caused.^  Boyn- 
ton,  for  instance,  in  a  case  hereafter  mentioned,  prepared  his  plans 
of  assassination  with  singular  caution,  but  wadded  his  gun  with  a 
piece  of  paper,  whose  fragments  were  discovered  at  the  place  of  the 
murder,  and  which  led  to  his  identification.  If  this  is  the  case  with 
deliberate  crimes,  eminently  is  it  so  with  crimes  committed  in  pas- 
sion. Such  crimes  are  often  as  insensible  in  their  mode  of  execu- 
tion as  any  that  the  most  raving  maniac  could  perpetrate. 

(6)  Its  incongruity  with  antecedents. 

§  390.  When  a  man  of  uniformly  mild  character  boldly  and 
openly  commits  a  deed  of  blood  ;  when  a  woman  of  previous  purity 

'  See  fully,  infra,  §  782. 

327 


§  892.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSTCHOLOGIOALLY. 

This  often  gives  way  to  lasciviousness  ;  when  a  long  course  of  irre- 
be°consia-  proachable  honesty  and  exactness  is  suddenly  broken  in 
ered.  i^y  profligacy  ;   or  domestic  peace,  by  unprovoked  ebul- 

litions of  violence,  or  by  expressions  of  distrust  to  those  formerly 
most  loved  or  most  trusted/  it  is  proper  to  consider  how  far  un- 
soundness of  mind  may  not  be  considered  as  the  cause. 

^  391.   It  has  already  been  mentioned^  that  the  examiner,  in 

order  to  give  a  conscientious  and  correct  report,  must 
S^prst^hfs-  acquaint  himself  with  the  plaintiff's  history,  so  far  as 
tory  neces-    ^|^^g  -g  practicable.    In  Prussia  this  is  required  by  statute  ;5 

and,  however  much  a  witness,  in  stating  the  sources  of 
information,  may  be  restricted  by  the  Anglo-American  rules  of 
evidence,  his  testimony,  by  the  same  rules,  will  be  shorn  of  much 
of  its  force  if  it  does  not  rest  on  an  adequate  foundation  of  fact. 
Relations,  friends,  servants,  above  all,  family  medical  advisers,  may 
well  be  expected  to  render  much  information,  upon  which  a  forensic 
physician,  charged  with  the  solemn  duty  of  giving  an  opinion  as  to 
sanity,  may  base  just  conclusions.  But  at  the  same  time  much 
caution  is  necessary  in  securing  such  renditions.  The  family  of  a 
patient  may  have  very  strong  reasons  for  either  believing  or  dis- 
believing his  sanity.  And  in  particular  is  the  evidence  of  mere 
occasional  visitors  to  be  jealously  scrutinized.  To  hundreds  of  such 
the  patient  may  have  appeared  sane ;  and  yet  the  negative  testimony 
derived  from  such  is  more  than  counterbalanced  by  proof  of  some 
positive  insane  act  committed  by  the  party  in  the  privacy  of  his 
family,  or  in  secret,  when  he  believed  himself  to  be  unsuspected  by 
human  eye.  Public  or  pre-notified  examinations  are  entitled  to 
little  comparative  weight.  They  always  throw  the  patient  on  his 
guard.  They  produce  in  him  at  the  best  a  non-natural  psycholo- 
gical state,  and  they  give  both  stimulus  and  opportunity  to  the  sane 
to  pretend  to  be  insane,  and  to  the  insane  to  pretend  to  be  sane. 
§  392.  Eminently,  therefore,  is  it  necessary  to  have  a  knowledge 

of  a  patient's  past  history.  That  which  is  sanity  in  one 
one  man  man,  and  which  is  the  state  of  mind  which  his  antece- 
hisanitj^in  dcnts  necessitate,  would  be  insanity  in  another.  A  man, 
another.        f^j.  instance,  is  conscious  of  some  secret  guilt,  and  he 

'  See  M6decine  Legale,  par  M.  Orfila,         *  Supra,  §  388. 
tome  i.  p.  389.  '  Liman's  Casper,  ed.  1871,  p.  411. 

328 


HOW    MENTAL   UNSOUNDNESS    IS   TO    BE   DETECTED.       [§  394. 

shelters  himself,  in  contrition  and  self-loathing,  from  the  public  eye 
in  morbid  seclusion ;  or  he  flies  from  shadows ;  or  he  resorts  to 
violent  action  to  cover  up  the  traces  of  his  crime.  Or  he  is  placed 
in  a  position  in  which  eccentricity  if  not  incoherence  may  seem 
essential  to  the  maintenance  of  his  rights.  To  penetrate  the  mask 
of  Hamlet's  madness,  for  instance,  it  is  necessary  to  understand 
Hamlet's  history.  To  explain  Cain's  Avild  flight  it  is  necessary  to 
understand  Cain's  guilt. 

§  393.  Was,  then,  the  alleged  insane  act  one  that  stood  out  in 
isolated  insularity  in  the  patient's  history,  or  was  it  one 

•^  .  1      1  f>  Insane  act 

of  a  sequence  of  morbid  though  sane,  and,  therefore,  either  iso- 
criminal  transactions  ?  Here,  indeed,  if  the  question  be  q^q  of  a 
one  relating  to  the  mere  proof  of  guilt,  insanity  being  sequence. 
disentangled  from  the  issue,  the  Anglo-American  practice  differs 
essentially  from  that  which  obtains  on  the  continent  of  Europe. 
By  the  former  in  criminal  trials,  it  is  not  permitted  for  the  prosecu- 
tion to  bring  in  evidence  of  the  defendant's  prior  character ;  and 
character  only  comes  in  when  invoked  by  the  defendant  itself.  By 
the  latter,  the  defendant's  whole  history,  so  far  as  it  is  supposed  to 
throw  light  on  the  case,  is  introduced  at  the  outset  by  the  prosecu- 
tion.^ But  when  the  issue  is  insanity,  the  rule,  according  to  the 
Anglo-American  practice,  changes.  The  reasons  are,  first,  because 
insanity  is  usually  set  up  by  the  party  himself,  or  his  representa- 
tives, and  from  its  nature  drags  into  the  issue  the  party's  whole 
life.  Secondly,  insanity  is  chiefly  to  be  proved  or  disproved  by 
facts  collected  from  the  party's  history.  His  counsel  may  put  in 
evidence  prior  alleged  acts  of  insanity,  or  may  rely  on  the  insu- 
lated or  sporadic  character  of  the  particular  act  to  show  its  insane 
type.  The  contesting  party  may  reply  by  showing  that  the  alleged 
insane  acts  were  not  exceptional  and  abnormal,  but  were  the  conse- 
quences of  voluntary  and  intelligently  indulged  passions,  or  of  sane 
design.2 

§  394.  That  there  are  such  things  as  isolated  and  abnormal  acts, 
which  are  even  vehemently  foreign  and  antagonistic  to 
the  perpetrator's  history  and  character,  it  needs  but  a   and  abnor- 
slight  acquaintance  with  the  literature  of  this  topic  to    j^o'^sibie! 
show.     Of  such  may  be  mentioned,  as  an  illustration,  the 

»  Wharton's  Conf.  of  Laws,  §  892.  «  See  supra,  §  144. 

329 


§  396.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

case  of  an  aflFectionate  and  most  exemplary  father,  hereafter  to  be 
more  fully  noticed,  who  suddenly,  under  the  influence  of  a  sharp 
but  crushing  attack  of  melancholia,  accompanied  by  a  delusion  that 
there  was  impending  on  the  household  a  ruin  only  to  be  escaped  by 
death,  killed  one  of  his  children  and  attempted  the  life  of  another. 
Two  similar  cases  are  reported  by  Dr.  Liman.^  Even  when  an 
alleged  insane  act  is  a  part  of  a  sequence  of  alleged  acts  of  intelli- 
gent guilt,  it  is  proper  to  inquire  whether  the  whole  sequence  may 
not  be  attributed  to  a  diseased  brain.  Here,  however,  come  in  the 
questions  of  motive,  and  of  consequentiality,  which  are  elsewhere 
specially  discussed.^ 

§  395.    It  has  been  already  observed   that  physical   diseases, 

especially  those  of  a  nervous  type,  are  particularly  wor- 
necessariiy  thy  of  consideration  in  this  respect ;  but  it  is  at  the  same 
moraricts    ^™®  always  to  be  remembered  that  there  are  no  physical 

conditions  which  necessitate  a  specific  moral  act.  Valu- 
able indeed  are  the  contributions  to  this  branch  of  psychology  which 
have  been  made  by  Morel,^  Maudesley,  and  Ray.  But  we  must, 
nevertheless,  accept  as  at  present  conclusive  the  assertion  of  Liman, 
in  his  late  authoritative  exposition  of  Casper,^  that  the  weight  of 
authority  both  psychological  and  psychopathical  is  that  we  have  no 
grounds  to  assume  that  in  insanity  disease  stereotypes  itself  in  act. 
Diagnosis  of  physical  disease  may  establish  Si  probability ,  but  nothing 
more;  It  is  always  a  matter  of  admissible  evidence  ;  but  without 
positive  proof  of  mental  disturbance  it  is  entitled  to  no  controlling 
effect.' 

§  396.  It  should  be  noticed,  also,  that  a  man  of  unsound  mind 

generally  chooses  the  most  iniudicious  time  and  place  for 

Insane  acts  .  . 

generally  the  perpetration  of  the  act,  although  the  cunning  and 
lyand  '  address  with  which  an  offence  was  committed  do  not 
avowedly,  exclude  the  supposition  of  derangement,^  and  repels  with 
indignation  every  intimation  of  his  insanity  ;  in  many  cases  assert- 
ing that  he  committed  the  crime  with  perfect  consciousness,  and 

'  Liman's    Casper,    ed.   1871,    cases  ^  See  supra,  §§  146-150. 

287,  289.  6  See  Med.  L6g.,  J.  Briand,  p.  553, 

«  See  §§  399-406.  Paris,   1852 ;   and   see  supra,  §§    361, 

3  Traits  de  la  Med.  Leg.,  Paris,  1866.  389,  390. 
«  Berlin,  1871,  p.  420. 

330 


HOW    MENTAL    UNSOUNDNESS   IS    TO   BE    DETECTED.       [§  399. 

when  entirely  in  his  senses,  and  disregarding  all  that  is  said  to 
extenuate  it.^ 

§  397.  M.  Falret  thus  speaks  of  the  change  of  character  which 
is  a  prominent  symptom  of  commencing  insanity  :  Some-  j^ganity  of- 
times,  instead  of  a  simple  exaggeration,  it  is  a  veritable    ten  changes 

'  .  ,  ,  1  T  •         character. 

transformation  that  the  character  undergoes.     Avarice 
gives  place  to  prodigality,  piety  to  irreligion,  modesty  to  obscenity, 
temperance  to  drunkenness,  the  love  of  truth  to  deceit,  the  most 
tender  and  tried  affections  to  indifference  and  even  hate.^ 

§  898.  A  frequent  result  is  the  neglect  of  the  duties  due  to  family 
and  society,  disorder  of  conduct  and  derangement  of  affairs,  and 
those  ebullitions  of  irritation  and  violence  which  momentarily  and 
sometimes  forever  destroy  the  harmony  existing  between  relations 
and  friends.  The  changes  of  conduct  observable  in  the  incubation 
of  mental  diseases  are  infinite  ;  the  deranged  show  a  neglect  or  an 
unaccustomed  zeal  for  their  customary  occupations,  and  for  the  cares 
and  attentions  of  family,  and  for  social  customs  and  duties.  Patients 
who  were  before  sedentary  in  their  habits,  indulge  in  long  absences 
from  their  dwellings.  Some  show  an  indiiference  and  neglect  for 
the  persons  and  things  they  loved  the  most,  and  seek  after  objects 
which  they  did  not  like.  Others  overwhelm  you  with  demonstra- 
tions of  obligingness  and  devotedness.  Generally  those  thus  affected 
are  absent  and  forgetful ;  they  do  not  remember  what  they  have 
done  or  what  they  were  about  to  do  an  instant  before,  and  then 
seem  much  surprised  when  these  frequent  absences  of  mind  are 
pointed  out  to  them.  Their  conduct  abounds  in  contrasts.  Those 
who  were  orderly  become  dissipated ;  those  who  were  careful  in 
business  now  enter  upon  the  most  dangerous  speculations,  and  they 
addict  themselves  to  play,  drinking,  and  sexual  excesses,  and  in 
fact  to  all  the  vices  which  were  before  unknown  to  them.^ 

(c)  Its  motivelessness.* 

§  399.  "It  is  assumed  or  implied,"  says  Dr.  Taylor,  with  great 
justice,  "  that  sane  men  never  commit  a  crime  without  an  apparent 

'  Compare  Friedreich,  Handbuch  der  Mentale,    M.    Falret.       8th    Lec-on,    p. 

gerichtsaertztlichen   Praxis.      Vol.    1.  215.     Paris,  1854.     Supra,  §  378. 
p.  370.  *  See  supra,  §  302.     Medeciiie  Legale, 

8  See  supra,  §  361.  J.    Briand,   p.    548-49.      Paris,    1852. 

'  Lec^ons  Cliniques   sur  rAlienation  Pinel,    Alienation     Mentale,    p.    157. 

381 


§  399.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

Apparent      motive,  or  one  of  delusive  nature  only  in  the  perpetration 
motive  not    ^^  ^  Criminal  act.     If  these  positions  were  true,  it  would 

a  proof  of      ijg  very  easy  to  distino-uish  a  sane  from  an  insane  crimi- 
insamty,  J  J  o  ^ 

nal,  but  the  rule  wholly  fails  in  practice.  In  the  first 
place,  non-discovery  is  here  taken  as  a  proof  of  the  non-existence 
of  a  motive  ;  while  it  is  undoubted  that  motives  may  exist  for 
many  atrocious  criminal  acts  without  our  being  able  to  discover 
them — a  fact  proved  by  the  numerous  recorded  confessions  of 
criminals  before  execution,  in  cases  of  which,  until  these  confes- 
sions were  made,  no  motive  for  the  perpetration  of  the  crime  had 
appeared  to  the  acutest  minds.  In  the  case  of  Courvoisier,  who 
was  convicted  of  the  murder  of  Lord  William  Russell,  in  June, 
1840,  it  was  the  reliance  upon  this  alleged  criterion,  before  the 
secret  proofs  of  guilt  accidentally  came  out,  which  led  many  to 
believe  he  could  not  have  committed  the  crime  ;  and  the  absence 
'  of  motive'  was  urged  by  his  counsel  as  the  strongest  proof  of  the 
man's  innocence.  It  was  ingeniously  contended,  '  that  the  most 
trifling  action  of  human  life  had  its  spring  from  some  motive  or 
other.'  This  is  undoubtedly  true,  but  it  is  not  always  in  the  power 
of  man  untainted  with  crime  to  detect  and  unravel  the  motives 
which  influence  criminals  to  the  perpetration  of  murder.  No  rea- 
sonable motive  was  ever  discovered  for  the  atrocious  murders  and 
mutilations  perpetrated  by  G-reenack  and  Good;  yet  these  persons 
were  very  properly  made  responsible  for  their  crimes.  On  the 
trial  of  Francis  for  shooting  at  the  queen,  the  main  ground  of  the 
defence  was,  that  the  prisoner  had  no  motive  for  the  act,  and,  there- 
fore, he  was  irresponsible  ;  but  he  was  convicted.  It  is  difficult  to 
comprehend  under  what  circumstances  any  motive  for  such  an  act 
as  this  could  exist ;  and,  therefore,  the  admission  of  such  a  defence 
would  have  been  like  laying  down  the  rule,  that  the  evidence  of 
the  perpetration  of  so  heinous  a  crime  should,  in  all  cases,  be  taken 
as  a  proof  of  the  existence  of  an  irresponsible  state  of  mind.  Crimes 
have  been  sometimes  committed  without  any  apparent  motive,  by 
sane  individuals  who  were  at  the  time  perfectly  aware  of  the  crimi- 
nality of  their  conduct.     No  mark  of  insanity  or  delusion  could 

Etudes      Medico  -  Psychologiques      sur  Legale,  M.  Falret,  Le(^on  2d,  pp.  55-67. 

rAlienation  Mentale,  par  L.  F.  E.  Re-  Paris,  1854.    Also  Medecine  Legale,  par 

naudin.  Paris,  1854,  chap.  18th,  p.  779.  Orfila,  tome  i.  p.  304.     Paris,  1840. 
See  also  Le^ous  Cliuiques  de  Medecine 

332 


HOW   MENTAL   UNSOUNDNESS   IS    TO    BE   DETECTED.       [§  401. 

be  discovered  about  them,  and  they  had  nothing  to  say  in  their 
defence.  They  have,  however,  been  very  properly  held  respon- 
sible. On  the  other  hand,  lunatics  confined  in  a  lunatic  asylum 
have  been  known  to  be  influenced  by  motives  in  the  perpetration 
of  crimes.  Thus  they  have  often  murdered  their  keepers  in  revenge 
for  ill-treatment  which  they  have  experienced  at  their  hands.^  Thus 
Farmer  was  acquitted  as  insane,  while  the  clear  motive  for  homicide 
was  revenge  and  ill-feeling.  In  another  case  the  act  of  murder 
was  perpetrated  from  jealousy.^  On  the  whole,  the  conclusion  with 
respect  to  this  assumed  criterion  is,  that  an  absence  of  motive  may, 
when  there  are  other  strong  evidences  of  insanity,  favor  the  view 
of  irresponsibility  for  crime  ;  but  the  non-discovery  of  a  motive  for 
a  criminal  act  cannot  of  itself  be  taken  as  any  proof  of  the  existence 
of  homicidal  monomania  in  the  perpetrator.  It  is  right  to  state, 
however,  that  the  law  invariably  acts  on  the  humane  principle,  that 
the  absence  of  a  sufiicient  motive  forms  a  strong  presumption  of 
innocence — the  presence  of  one  is  no  proof  of  guilt."^ 

That  apparent  motivelessness  is  sometimes  an  accompaniment  of 
sanity,  will  be  noticed  hereafter.* 

§  400.  It  has  been  already  said,^  that  it  is  the  duty  of  the  psy- 
chological expert,  before  testifying  on  the  question  of 
sanity,  to  explore  the  motives  which  led  to  the  perpetra-   ^"ff^for 
tion  of  the  act  or  acts  under  examination.     No  act  is    study  of 

motive. 

committed  without  motive.  This  motive  may  be  sane  or 
insane.  But  so  complex  is  human  nature — so  subtle  are  the  influ- 
ences which  lead  to  human  actions — that  for  the  assignment  of  true 
motive  it  is  requisite  not  only  to  have  an  experimental  knoAvledge 
of  the  human  heart  in  general  in  its  manifold  phases  and  possibili- 
ties, but  to  have  a  special  acquaintance  with  the  history  of  the 
person  whose  sanity  is  under  investigation.  In  making  such  a 
study,  the  following  suggestions  will  be  of  use. 

§  401.  1.  It  is  rare  that  the  motive  to  an  act  is  simple.     There 
is  generally  a  confluence  of  motives,  for  and  against  a   ■^q^^^,^ 
particular  step ;  and  the  will  may  remain  in  equipoise    rarely  sim- 
until  some  trifle,  such  as  a  prejudice  scarcely  acknowl- 

'  See  the  case  of  Queen  v.  Farmer,         ^  Taylor's   Med.  Jurisprudence,  pp. 

York  Spring  Assizes,  1837.  578,  679. 

2  Reg.    V.    Goule,    Durham   Summer         *  Infra,  §  782. 
Assizes,  1845.  ^  See  supra,  §  302. 

3(J3 


§  401.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

edged  even  by  self,  or  an  omen,  or  a  lot,  turns  the  scale.  So  far, 
also,  from  particular  motives  acting  on  men  with  uniform  force,  they 
vary  in  their  effects  as  materially  as  do  the  characters  of  those  on 
whom  they  operate.  What  on  one  man  has  an  overwhelming  force 
influences  other  men  but  slightly.  What  is  rational  to  one  man  is 
highly  irrational  to  another.  Sir  Robert  Walpole,  for  instance, 
was  a  statesman  of  peace,  and  the  war  with  Spain,  which  he  was 
goaded  to  undertake,  was  hostile  to  his  whole  system  of  policy ; 
it  could  not  be  fitted  into  that  system  of  policy  ;  it  was  to  him 
irrational.  Lord  Chatham,  on  the  other  hand,  was  a  statesman  of 
war ;  a  patient  peace  policy  was  to  him  so  unnatural  and  incongru- 
ous that  when  he  attempted  it  he  was  capricious,  if  not  imbecile ; 
while  he  carried  on  war  with  an  adventurous  and  bold  hand,  and 
displayed  in  its  conduct  the  highest  gifts  of  genius.  To  him,  there- 
fore, it  was  as  rational  to  flash  forth  immediate  war  on  a  supposed 
national  affront,  as  to  Walpole  it  would  have  been  gravely  to  con- 
sider the  issue,  and,  if  it  could  be  done  honorably,  to  cause  the 
removal  of  the  offence  by  arts  of  peace.  Yet,  for  unjust  war,  when 
it  occurred,  Walpole  and  Chatham  would  have  been  equally  respon- 
sible to  public  opinion,  though  the  first  embarked  in  such  war  from 
a  weak  concession  to  rivals,  the  second  from  personal  passion  and 
fire.  So,  to  take  a  case  that  occurred  in  Philadelphia  some  years 
since,  a  young  man  named  Alexander,  from  one  of  the  southwestern 
States,  educated  in  the  most  fantastic  school  of  chivalry,  received 
a  supposed  insult  in  a  broker's  shop,  and  instantly  shot  the  assail- 
ant dead.  To  him,  the  act,  on  his  code,  was  rational;  it  was  the 
natural  result  of  his  principles,  which  he  had  intelligently  accepted; 
he  was  as  morally  responsible  to  the  law  of  the  land,  though  it  may 
be  in  a  different  shade  of  guilt,  as  would  be  the  assassin  who,  on 
the  principle  that  he  will  get  what  he  can,  kills  the  victim  whom  he 
plunders,  or  the  duellist  who  from  cowardice  shivers  into  a  duel. 
Insanity  in  neither  case  is  to  be  presumed  ;  there  is  intelligent  mo- 
tive, though  motive  deriving  its  force  from  the  character  on  which 
it  acts.  So  also  in  a  parallel  drawn  by  Liman.^  A  wretch  named 
Markmann  saw  in  the  street  an  old  woman  carrying  a  basket,  in 
which  was  a  clean  linen  shirt.  He  wanted  to  have  it ;  he  followed 
the  woman  to  rob  her ;  he  struck  her ;  and  from  the  blow  she  died. 

'  Liman's  Casper,  ed.  1871,  p.  422. 

334 


HOW   MENTAL   UNSOUNDNESS   IS   TO   BE   DETECTED.       [§  403. 

H.,  an  educated  and  refined  young  ofiicer,  was  struck  on  the  face 
suddenly,  in  a  public  garden,  in  presence  of  his  intended  wife  and 
a  large  crowd  of  spectators  ;  and  immediately  shot  the  assailant  to 
the  heart.  Yet  H.  would  not  have  been  impelled  to  homicide  by 
desire  to  rob,  nor  Markmann  by  a  desire  to  avenge  wounded  honor. 

§  402.  In  each  case,  however,  the  motive  that  operated  was  one 
that  was  adequate  according  to  the  defendant's  own  lights.  It  is 
necessary,  therefore,  in  order  to  determine  upon  the  motivelessness 
of  an  act,  for  the  expert  to  place  himself  at  the  point  of  vision  occu- 
pied by  the  person  whose  act  is  under  investigation.  We  have  no 
right  to  establish  for  the  causa  faeinoris  an  arbitrary  motive  such 
as  would  in  reference  to  dispassionate  men  be  rational.  There  are 
no  dispassionate  men.  Each  man  has  his  own  idiosyncrasies  which, 
though  more  or  less  operative  on  his  judgment,  are  consistent  with 
sanity.  Eminently  is  this  the  case  with  wills.  A  man  of  high 
honor  may  be  peculiarly  sensitive  as  to  a  child's  unworthiness,  and 
from  this  disinheritance  may  spring.  Another  may  disinherit  a 
relation  for  an  offence,  trivial  in  grade,  and  perhaps  imaginary ; 
yet,  if  there  be  no  fraud  or  insanity  proved  aUu7ide,  the  will  is 
good.^  So  also  as  to  the  causa  faeinoris  in  criminal  cases.  There 
is  no  minimum  below  which  a  motive,  in  the  eye  of  the  law,  ceases 
to  exist.  Murders  have  been  committed  by  the  abject  and  avari- 
cious for  coppers ;  while  men  almost  stifled  with  wealth  have  been 
known  to  seek  to  augment  such  wealth  by  perjuries  and  frauds. 
Trivial  motives,  as  they  are  sometimes  called,  are,  considered  by 
themselves,  proof  rather  of  a  mind  familiar  with  crime  than  of 
lunacy. 

§  403.     2.  Wor  can  we  dare,  as  is  sometimes  done,  to  withdraw 
instinctivepassion  from  the  range  of  responsible  motives,    j    ^.    ,. 
As  has  been  strikingly  stated,  in  an  argument  elsewhere    passion  re- 

.•19,,  ....  .         .  ,         sponsible. 

noticed,''  the  question  is,  is  the  motive,  in  respect  to  the 
individual  under  investigation,  one  that  can  be  overbalanced  by  fear 
of  punishment  ?  Is,  for  instance,  a  man  who  flies  into  transports 
of  rage  or  lust  capable  of  moderating  these  transports  when  the 
fear  of  punishment  or  disgrace  is  held  steadily  and  conspicuously 
before  his  eye  ?     If  so,  the  law  must  threaten  such  punishment  and 

•  See  supra,  §§  83-86.  «  See  supra,  §§  146-153,  188,  189. 

335 


§  404.]       MENTAL    UNSOUNDNESS    CONSIDERED    PYSCHO  LOGIC  ALLY. 

disgrace  as  the  necessary  consequence  of  the  indulgence  of  such 

passion  ;  and,  where  it  threatens,  it  must  execute. 

§  404.     3.  Nor  can  we,  with  any  safety  to  the  community ,  or 

„..  ,  any  judicial   consistency ,   declare   as   motiveless   tJiose 

ness  not         oifences  which  are  stimulated  by  no  other  apparent  pur- 
motiveless.       "^  ,  ,  ,  ,         ,  y  „    .    ^.     . 

pose  than  that  of  outraging  latv,  or  that  of  mjlicting 
upon  others  pain  or  disgrace.  It  is  true  we  may  connect  such 
offences  in  their  lighter  phases  with  the  desire  to  attract  attention, 
or  to  excite  surprise,  or  to  gratify  curiosity  as  to  how  others  will 
behave  in  certain  absurd  relations  in  which  they  may  be  placed.^ 
Under  this  head  may  be  mentioned  the  police  adventures  which 
Cruikshank  has  recorded  as  fashionable  among  men  of  the  town  in 
the  days  of  the  regency,  and  the  practical  jokes,  sometimes  very 
cruel,  designed  by  Theodore  Hook.  But  there  is  another  class  of 
offences,  based  simply  on  the  love  of  malevolent  action,  and  which, 
without  having  even  the  excuse  of  vanity  or  curiosity  advanced  for 
the  last,  are  prompted  by  such  malevolence  pure  and  simple,  and  yet 
which  the  law  regards  as  in  the  highest  degree  criminal,  and  the 
objects  of  its  most  signal  penalties.  In  January,  1872,  we  hear  of 
a  prosecution  instituted  against  some  laborers  in  a  Pennsylvania 
mining  town  who  poured  petroleum  on  a  negro  boy  and  then  set  fire 
to  him  ;  and  with  this  may  be  grouped  the  case  of  a  miscreant  men- 
tioned by  Bottex,  who  threw  a  boy,  a  stranger  to  him,  in  the  water, 
simply  to  watch  his  drowning  struggles ;  of  Earl  Ferrars,  who,  in 
cool  malignity  and  with  no  imaginable  other  motive,  killed  his 
steward  ;  of  the  Count  of  Charleroi  (a  Bourbon),  who,  among  other 
atrocities,  out  of  "  sport"  shot  one  of  his  servants,  from  the  roof  of 
a  house,  as  he  would  have  shot  a  wild  beast;  of  the  widow  Zwan- 
ziger  who  poisoned  as  a  matter  of  curiosity  ;  of  the  fiendish  mother 
told  of  by  Pohlman,  who,  after  a  series  of  cruelties,  shut  up  her 
child  in  a  room  with  a  nest  of  wasps.  These  cases,  if  we  limit 
motives  to  lust,  to  avarice,  to  revenge,  to  passion,  to  desire  to  secure 
safety,  are  motiveless.  They  may,  as  has  been  well  remarked,  pass 
over  a  wide  range,  from  the  boy  who  malevolently  tortures  a  kitten, 
to  Tiberius  who  malevolently  tortures  a  slave.  They  may  spring 
simply  from  the  desire,  more  or  less  powerful,  to  inflict  pain.     Yet 

»  See  supra,  §§  163-178,  183,  189.     For  authorities,  see  Wh.  Cr.  L.  8tli  ed. 
§  119. 

836 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  406. 

they  are  peculiarly  amenable  to  penal  justice  for  two  reasons. 
First,  being  what  is  commonly  called  "  motiveless,"  they  cannot  be 
warded  off  by  any  amount  of  personal,  voluntary  precaution.  We 
can  defend  ourselves  by  bolts  from  the  burglar ;  we  can,  by  pru- 
dence, keep  out  of  the  range  of  the  predatory  and  deliberate  assassin ; 
we  may  cause  the  arrest  of  one  by  whom  our  life  is  threatened.  No 
precaution,  however,  is  a  defence  against  the  merely  malevolent 
criminal,  who  fires  a  house,  or  shoots  a  stranger,  simply  to  watch 
the  pain  he  inflicts.  The  only  hand  that  can  intervene  is  that  of 
the  law.  Secondly,  such  offenders  are  peculiarly  open  to  the  in- 
fluences of  fear.  They  are  either  thoughtless  or  cowardly.  To 
check  them,  it  is  essential  for  the  law  to  announce  to  them  in  terms 
unmistakable,  "this  thing  will  be  signally  punished."  This,  in  fact, 
is  the  only  motive  by  which  they  can  be  restrained ;  and  by  this, 
when  the  motive  is  presented  to  them,  and  they  believe  in  it,  they 
are  restrained.  But  what  the  law  thus  announces,  it  must  execute. 
Nor  can  it  speak  to  such  characters,  except  by  the  example  of  pun- 
ishment inflicted  upon  others,  and  therefore  by  punishment  immi- 
nent to  self.^ 

§  405.  Yet,  making  all  these  deductions,  there  is  such  a  thing 
as  a  legally  motiveless  act.     When,  without  malevolence, 

.  .  .  .       Yet  there 

and  without  any  benefit  or  gratification  to  self,  an  act  is    may  be  a 
done,  the  perpetrator  cannot  be  regarded  as  intentionally    tifeiessact^ 
and  specifically  criminal. 

(c?)  Neglect  to  escape.^ 

§  406.  Exculpatory  subterfuges,  and  attempts  to  escape,  if  de- 
signed before  the  commission  of  the  offence,  go  a  great 
way  to  show  that  the  offender  was  conscious  that  the    arranged 
intended  act  was  wrong.     When,  indeed,  such  prepara-   ^q^  always^ 
tions  are  intelligently  and  consistently  made,  very  strong   v^oofs  of 
proof  of  insanity  must  exist  to  overthrow  the  presump- 
tion of  sanity  they  supply.^     In  the  case  of  Christiana  Edmunds, 

■  Cases  of  homicide,  where  the  mo-  kewiirdiger  Verbrechen,  Giessen,  1828, 

live  was  mere  malevolence,  and  desire  and  by  Liman,  in  his  edition  to  Casper, 

to  inflict    pain,   and  yet   where    this  Berlin,  1871,  p.  425. 

motive  was  one  which  fear  was  able  to  ^  gee   Wills   on   Circumst.    Ev.   70  ; 

control  and  subdue,  are  given  by  Feuer-  Best  on  Presurap.  322  ;  Wh.  Ev.  §  750. 

bach,  Aktenmassige  Darstellung  Mer-  ^  Supra,  §§  168-170. 

VOL.  I.— 22  337 


§  407.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

which  is  elsewhere  fully  noticed,  this  was  the  chief  difficulty  with 
which  the  counsel  for  the  defence  had  to  struggle.  The  charge  was 
poisoning ;  and  it  was  shown  that  she  had  taken  peculiarly  skilful 
means,  both  before  and  after  the  guilty  act,  to  throw  its  burden 
upon  others.  Yet  it  must  be  remembered  that,  when  a  mind  other- 
wise intelligent  is  controlled  by  an  insane  delusion,  preparations 
the  most  rational  may  be  made  to  gratify  this  delusion,  and  subse- 
quently to  defend  its  gratification.  Several  cases  have  just  been 
cited  to  illustrate  this  ;  and  the  discipline  of  lunatic  asylums  is 
based  upon  the  existence  of  such  capacity,  and  upon  the  moral  sen- 
sibility displayed  by  such  devices  to  avoid  detection.  But,  after 
all,  it  is  rare  that  some  insane  freak  does  not  ultimately,  in  cases 
of  true  insanity,  exhibit  itself  after  the  consummation  of  the  act. 
In  a  melancholy  instance  elsewhere  noticed,  a  gentleman  who  had 
planned  and  executed,  under  an  insane  delusion,  the  killing  of  one 
of  his  children,  made  his  escape,  it  is  true,  successfully,  but  dressed 
himself  simply  in  his  night-clothes,  and  was  hence  at  once  arrested. 
To  this  effect,  also,  is  a  case  reported  by  Dr.  Liman.  An  uphol- 
sterer named  Schulze,  who,  under  a  similar  delusion,  killed  his 
children  whom  he  most  tenderly  loved,  took  the  pains,  before  the 
act,  to  send  out  of  the  house,  on  an  errand,  a  woman  who  other- 
wise would  have  been  a  witness  of  the  act.  But  the  pretext  on 
which  he  sent  her  was  the  delivery  of  a  letter  to  a  clergyman 
whom  he  did  not  even  personally  know.  When  the  letter  was 
opened,  it  was  found  to  contain  simply  the  words :  '■''Eu.  WoKlge- 
horen  Schulze^^ — your  honorable  Schulze. 

§  407.  In  cases  where  the  sanity  of  a  testator  or  obligor  is  con- 
„ tested,  and  where  the  point  is  the  existence  of  an  insane 

Skill  m  '         _  ^  _  . 

concealing     delusion,  little  can  be  inferred  from  the  skill  and  caution 
proves  with  which  such  delusion  is  indulged.     A  testator,  for 

httie.  instance,  under  the  delusion  of  infidelity  or  persecution 

from  his  nearest  and  most  devoted  relatives,  has  been  known  most 
artfully  to  conceal  this  delusion  until,  as  in  one  or  two  reported 
cases,  it  is  drawn  from  him  by  his  legal  adviser  when  he  makes  his 
will.  So  in  the  case  of  a  gentleman  against  whom  a  commission  of 
lunacy  was  taken  out  in  Philadelphia  some  years  since,  and  in 
which  the  evidence  of  insanity  was  incontestable,  one  of  the  delu- 
sions was  that  animals  were  intelligent,  and  capable  of  correspond- 
ence. He  wrote  letters  to  cows,  for  instance,  which  letters  he 
338 


HOW  MENTAL  UNSOUNDNESS  IS  TO  BE  DETECTED.   [§  409. 

showed  the  utmost  adroitness  in  concealing,  and  which  he  after- 
wards attempted  to  excuse  as  a  joke.  Yet  the  precautions  he  dis- 
played in  mailing  the  letters,  while  they  showed  his  sense  of  the 
risks  to  which  such  wild  acts  exposed  him,  showed  also  the  reality 
of  the  delusion  by  which  he  was  beset. 

§  408.  Yet  here  also  the  converse,  especially  in  criminal  cases, 
fails.     Prearranged  subterfuges  infer,  no  doubt,  a  con- 

.        .  1         •!  1         t,    L    Innocence 

sciousness  that  the  act  in  question  is  reprehensible  ;  but  not  shown 
the  absence  of  such  subterfuges  does  not  prove  a  con-  of  pre^-^'^^^ 
sciousness  that  such  act  was  innocent.^  For  the  sane  g"J5.°ff^^g_ 
culprit  is  often  not  in  a  position  in  which  such  prepara- 
tions can  be  made.  Crimes  committed  in  sudden  passion,  in  par- 
ticular, are  from  their  very  nature  incapable  of  being  thus  ante- 
cedently shielded. 

§  409.  Equally  complex,  though  essentially  dissimilar,  are  the 
questions  that  arise  when  the  effort  is  to  draAV  the  pre- 

•^  Attempts 

sumption  of  sanity  from  attempts  at  subtertuge  or  escape  at  escape 
after  the  consummated  offence.  Men,  sane  and  insane,  renceno 
innocent  and  guilty,  instinctively  seek  to  escape  danger.  P''°?f  °^ 
Innocent  men,  charged  with  crime,  have  sometimes  in 
quasi-'mssimtj  fled  their  country,  and  resorted  to  frantic,  but 
tortuous  and  even  guilty  efforts  to  turn  upon  others  the  impending 
shock.2  This,  in  several  well-known  cases  in  the  United  States,  has 
been  the  result  of  the  attempt  to  blackmail  men  who,  as  it  transpired 
ultimately,  were  entirely  innocent,  but  who  were  driven  almost  to 
delirium  by  the  attack.  On  the  other  hand,  persons  who,  either 
from  revenge,  or  jealousy,  or  political  enthusiasm,  commit  crimes 
whose  consequences  they  know  they  cannot  evade,  and  in  whose 
character  they  glory,  may  resist  this  instinct,  and  boldly  surrender 
themselves  after  the  successful  commission  of  the  act.  Numerous 
cases  of  this  kind  are  found  in  trials  for  homicide  through  jealousy; 
and  among  those  where  the  impulse  was  political  fanaticism  may  be 
mentioned  that  of  Ravaillac,  who,  after  assassinating  Henry  IV., 
exultingly  declared  his  guilt.  Yet  it  must  not  be  forgotten  that  in 
cases  of  imbeciles,  and  those  acting  under  certain  phases  of  insane 
delusion,  indift'erence  to  personal  safety  would,  in  such  cases,  be  a 
necessary  incident  of  freedom  from  consciousness  of  wrong-doing. 

»  Infra,  §  782.  2  Wh.  Cr.  Ev.  §  750. 

339 


§  411.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

(g)  Forgetfulness  as  to  act. 

§  410.  Here  we  may  notice  another  feature  which  accompanies 

c  ^  .    insane  action,  viz.,  subsequent  ohliviousness  as  to  the  en- 

Subsequent  ,  . 

forgetful-  tire  occurrence}  Several  curious  instances  are  given  in 
tion  is  a  '  the  books  in  which,  after  acts  of  marked  and  even  atro- 
ticm  o?in-  cious  lawlessness  committed  by  the  insane,  there  was  an 
sanity.  utter  forgetfulness  of  the  event,  or  a  remembrance  of  it 

only  as  something  dreadful  that  occurred  in  a  dream.  The  sane 
man  sometimes  trembles  on  waking,  lest  something  he  had  dreamed 
of  doing,  he  had  really  done.  The  insane^  after  committing  the 
act  when  awake,  afterwards  shivers  at  it  as  if  it  was  only  a  dream, 
yet  a  dream  which  he  shudders  to  recall.  Such  was  the  state  of 
Mary  Lamb,  after  killing  her  mother,  of  which  she  had  only  a 
blurred  consciousness  as  of  something  she  had  dreamed  of;  and  not 
rare  are  the  cases  in  which  maniacs,  in  lucid  intervals,  have  asked 
with  cries  of  terror,  as  their  first  inquiry,  for  one  whom  in  their 
paroxysm  they  may  have  destroyed.  This,  we  are  told  by  Dr. 
Liman,  is  peculiarly  the  case  after  injuries  of  the  brain,  and  after 
the  transitory  mania  of  persons  affected  with  epilepsy,  hysteria, 
uterine  disease,  acute  intoxication,  sleep-drunkenness,  and  uncon- 
sciousness produced  by  anemia  of  the  brain.  Of  cases  of  such 
dreamy  confusion  and  of  misty  terror  at  a  vague  but  appalling 
recollection,  we  have  illustrations  in  trials,  of  which  several  are 
reported  in  the  United  States,  of  mothers  who,  when  in  puerperal 
fever,  killed  their  children.  Several  cases  where  this  defence  was 
psychologically  investigated  are  given  in  Liman's  Casper.^ 

§  411.  Yet,  even  here,  when  such  oblivion  is  set  up,  there  are 
cautions  to  be  interposed.     It  is  always  a  matter  of 

But  such  a     •  .    .  ,  ,,  ,  ,  .      ^. 

defence  grave  suspicion  when  the  party  under  examination  pro- 
Tc^ion°^"^"  fesses  to  have  no  recollection  of  the  event.^  Psycholo- 
gically, such  a  supposition  of  two  utterly  distinct  con- 
sciousnesses is  only  probable  when  there  is  a  loss  of  memory  as  to 
the  whole  section  of  time  in  which  the  event  in  question  is  contained. 
There  are,  therefore,  grave  reasons  to  believe  the  defence  is  feigned, 
when,  before  the  examination  is  instituted,  and  when  the  patient 
thinks  himself  unobserved,  he  betrays  a  recollection  of  collateral 
incidents  embraced  in  the  same  scope  of  time. 

>  See  infra,  §  449.  «  Vol.  ii.  Cases  324,  325,  329.  »  Infra,  §  449. 

340 


DISTINGUISHING   MENTAL   UNSOUNDNESS. 


CHAPTER  III. 

FROM  WHAT  MENTAL  UNSOUNDNESS  IS  TO  BE 
DISTINGUISHED. 


I.  Emotions. 

Insanity  distinguishable  from  passion, 
§412. 

1.  Remorse, 

Remorse  may  approach  insanity,  §  413. 

Relation  to  derangement,  §  414. 

Cannot  be  always  suppressed,  §  415. 

Remorse  not  a  proof  of  sanity  at  time 
of  act,  §  416. 

Nor  is  absence  of  remorse  a  proof  of  in- 
sanity, §  417. 

2.  Anger. 

Anger  and  revenge  less  like  insanity 
than  is  remorse,  §  422. 

3.  Shame. 

Shame  may  produce  a  state  resembling 

insanity,  §  423. 
Instances  of  insanity  caused  by  shame, 

§424. 
Suicide  from  shame,  §  425. 

4.  Grief. 
Symptoms  of  grief,  §  426. 

Capacity  to  weep  no  test  of  grief,  §  427. 
Insanity  not  relieved  by  counter-irrita- 
tion, like  grief,  §  428. 

5.  Homesickness  {Nbstalgia). 
Nostalgia  often  like  hysteria,  §  429. 
May  run  into  delirium,  §  430. 
Nostalgia  not  always  a  mental  disease, 

§431. 
May  be  either  cause  or  result  of  other 

diseases,  §  431  a. 

6.  Fear. 
Distinction  between  sane  and  insane 
fear  important,  §  432. 


Importance  of  question,  §  433. 

Usually  conditioned  on  a  contingency, 
§434. 

Effects  of  fear  vary  with  diflferent  con- 
stitutions, §  435. 

Symptoms  of  fear,  §  436. 

Relation  of  fear  to  the  functions  of  the 
mind,  §  437. 

Murder  under  the  influence  of  fear,  § 
438. 

1.  To  avert   threatened   disaster  to 
person  killed,  §  439. 

2.  In  supposed  self-defence,  §  440. 

3.  In  the  case  of  imbecility,  §  441. 
Fear  with  those  whose   intellects   are 

disordered,  §  442. 

II.  Simulated  Insanity. 
1.  Examination. 
Detection  of  feigned  insanity,  §  443. 
Close  observation  of  subject  necessary, 
§444. 

2.  Reasons  for  suspecting,  §  445. 
3.  Forms  generally  simulated. 

Delirium  the  form  of  insanity  most 
usually  simulated,  §  446. 

Yet  imbecility  easier  to  feign,  §  447. 

Mania  difficult  to  feign,  §  448. 

Simulated  oblivion  frequent,  §  449. 

Physiognomy  and  health  to  be  ex- 
amined, §  450. 

Comparison  of  cases  the  surest  test,  § 
451. 

4.  Not  proved  by  sanity  at  the  trial. 
Reasons  for  this,  §  452. 

Pretended  insanity  may  turn  into  real, 
§453. 

341 


§  412.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 


5.   Tests. 

Suggestions  for  the  discovery  of  feigned 
insanity,  §  454. 

Artificial  tests  sometimes  used,  §  455. 

Periodicity  a  test  where  it  is  a  condi- 
tion of  insanity,  §  456. 


Silence  or  evasion  of  question  is  sus- 
picious, §  457. 

Real  lunatics  rarely  acknowledge  de- 
lusions, §  458. 

Consistent  simulation  almost  impossi- 
ble, §  459. 

But  simulation  does  not  exclude  in- 
sanity, §  460. 


I.    EMOTIONS.^ 

§  412.  Briand  says,  that  from  the  height  of  passion  to  madness 
In  anit  ^^  ^^^  °^®  step,  but  it  is  precisely  this  step  which  decides 
distin-  the  quality  of  the  act.     It  is  important  then  to  know 

from  pas-  exactly  the  precise  characteristics  of  the  passions  and  of 
"°°'  insanity.     But  here  science  fails,  for  it  must  be  admitted 

that  we  are  unable  to  point  out  the  place  where  passion  ends  or 
where  madness  commences.^  M.  Orfila  draws  the  following  dis- 
tinction between  a  man  acting  under  the  impulse  of  the  passions 
and  one  urged  on  by  insanity.  The  mind  is  always  greatly  troubled 
when  it  is  agitated  by  anger,  tormented  by  an  unfortunate  love, 
bewildered  by  jealousy,  overcome  by  despair,  humbled  by  terror, 
or  corrupted  by  an  unconquerable  desire  for  vengeance,  etc.  Then, 
as  it  is  commonly  said,  a  man  is  no  longer  master  of  himself,  his 
reason  is  affected,  his  ideas  are  in  disorder,  he  is  like  a  madman. 
But,  in  all  these  cases,  a  man  does  not  lose  his  knowledge  of  the 
real  relation  of  things  ;  he  may  exaggerate  his  misfortune,  but  this 
misfortune  is  real,  and,  if  it  carries  him  to  commit  a  criminal  act, 
this  act  is  perfectly  well  motived.  Insanity  is  more  or  less  inde- 
pendent of  the  cause  that  produced  it,  it  exists  of  itself ;  the  pas- 
sions cease  with  their  cause,  jealousy  disappears  with  the  object 
that  provoked  it,  anger  lasts  but  a  few  moments  in  the  absence  of 
the  one  who  by  a  grievous  injury  gave  it  birth,  etc.  Violent  pas- 
sions cloud  the  judgment,  but  they  do  not  produce  those  delusions 


'  See  particularly  Aristotle's  delinea-        ^  Med.  Leg.  p.  551.  Paris,  1852.    See 
tion  of  the  Passions  in  the  Second  Book    also  infra,  §  816,  on  the  psychical  indi- 


of  his  "Rhetoric;"  and  see  also  L. 
Krahmer,  Handbuch  der  gericht.  Med. 
Halle,  C.  A.  Schwetschke,  1851,  §  126. 
Observe,  also,  an  essay  by  Leigh  Hunt, 
in  his  Miscellanies,  p.  51. 

342 


cations  of  crime.  See  an  article  on 
Emotional  Insanity,  5  Journ.  Nerv.  & 
Ment.  Diseases,  79. 


REMORSE.  [§  414. 

which  are  observable  in  insanity.  They  excite  for  a  moment 
sentiments  of  cruelty,  but  they  do  not  produce  that  deep  moral 
perversion  -which  influences  the  madman  to  sacrifice,  without  motive, 
the  being  he  most  cherishes.^ 

1.  Remorse. 

§  413.  "When  remorse,"  says  Cogan,  "is  blended  with  the  fear 
of  punishment,  and  rises  to  despair,  it  constitutes  the 

.     T  ,,  .      ,      „     „  Remorse 

supreme  wretchedness  ot  the  mind.  ^     And  oi  all  stages    may  ap- 
of  passion,  remorse  is  the  one  most  liable,  when  the  con-   ^^nity.  ^^' 
science  is  acute,  to  be  mistaken  for  insanity  itself.     Of 
this  we  have  a  melancholy  case  in  our  own  local  experience.     A 
young  gentleman  of  peculiarly  nice  sense  of  honor  and  keen  sensi- 
bility, killed  an  intimate  and  beloved  friend  in  a  duel,  hastily  forced 
on  by  his  own  undue  susceptibility.    For  twenty  years  he  has  never 
ceased  to  stride  to  and  fro  the  chamber  in  which  he  has  been  con- 
fined, firing  an  imaginary  pistol  at  intervals,  and  then  throwing  him- 
self back  with  the  acutest  expression  of  misery.     In  this  instance 
remorse  has  run  into  madness.     In  others  it  has  made  but  a  slight 
progress  in  that  direction  ;  in  others  entire  sanity  and  responsibility 
remain.     And  yet  in  all  instances  it  presents  symptoms  which  it  is 
well  for  the  forensic  physician  to  examine  in  relation  to  their  moral 
as  well  as  their  psychical  origin. 

§  4l4.  Harpsfield,  in  his  Ecclesiastical  History,  gives  us  the  fol- 
lowing graphic  report  of  the  dying  words  of  Cardinal  ^^-^^^^^^  ^^ 
Beaufort,  which  is  a  powerful  illustration  of  the  effect  of  derange- 

m  fin  1*1 

this  passion:  "And  must  I  then  die  !  Will  not  all  my 
riches  save  me !  I  could  purchase  the  kingdom,  if  it  would  save 
my  life.  What!  is  there  no  bribing  of  death  ?  When  my  nephew, 
the  Duke  of  Bedford,  died,  I  thought  my  happiness  and  my  autho- 
rity greatly  increased :  but  the  Duke  of  Gloucester's  death  raised 
me  in  fancy  to  a  level  with  kings,  and  I  thought  of  nothing  but 
accumulating  still  greater  wealth,  to  purchase  at  last  the  triple 
crown.  Alas !  how  are  all  my  hopes  disappointed !  Wherefore, 
0  my  friends,  let  me  earnestly  beseech  you  to  pray  for  me,  and 

>  Med.  Leg.  tome  i.  p.  407.     Paris,         ^  Cogan  on  the  Passions,  vol.  i.  chap. 
1848.     This   passage   adopted   in    Mc-    2,  §  3. 
Farland's  case,  8  Abbott  (N.  Y.)  Prac. 

C.,N.  S.  69. 

343 


§  415.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

recommend  my  departing  soul  to  God  !"  A  few  minutes  before  his 
death  his  mind  appeared  to  be  undergoing  the  tortures  of  the  damned. 
He  held  up  his  two  hands,  and  cried — "Away!  away!  why  thus 
do  you  look  at  me  ?"  This  same  scene  in  the  cardinal's  chamber 
is  thus  still  more  vividly  depicted  by  Shakspeare : — 


King  Hen. 
Cardinal. 


King  Hen. 

Warwick. 
Cardinal. 


King  Hen. 


Warwick. 


§415. 


SCENE — The  Cardinal's  hed-chimher. 
Enter  King  Henry,  Salisbury,  and  Warwick. 

How  fares  my  lord  ?  speak,  Beaufort,  to  thy  sovereign. 

If  thou  he'st  death,  I  '11  give  thee  England's  treasure, 

Enough  to  purchase  such  another  island. 

So  thou  wilt  let  me  live,  and  feel  no  pain. 

Ah,  what  a  sign  it  is  of  evil  life. 

When  death's  approach  is  seen  so  terrible  ! 

Beaufort,  it  is  thy  sovereign  speaks  to  thee. 

Bring  me  unto  my  trial  when  you  will ; 

Died  he'  not  in  his  bed  ?  where  should  he  die  ? 

Can  I  make  men  live  whe'r  they  will  or  no  ?— 

Oh  !  torture  me  no  more,  I  will  confess. — 

Alive  again  ?  then  show  me  where  he  is  ; 

I  '11  give  a  thousand  pounds  to  look  upon  him. 

He  hath  no  eyes,  the  dust  hath  blinded  them. 

Comb  down  his  hair  ;  look  !  look  !   it  stands  upright, 

Like  lime-twigs  set  to  catch  my  winged  soul ! — 

Give  me  some  drink  ;  and  bid  the  apothecary 

Bring  the  strong  poison  I  bought  of  him. 

0  thou  eternal  Mover  of  the  heavens. 

Look  with  a  gentle  eye  upon  this  wretch  ! 

Oh,  beat  away  the  busy  meddling  fiend 

That  lays  strong  siege  unto  this  wretch's  soul  !— 

And  from  his  bosom  purge  this  black  despair  ! 

See,  how  the  pangs  of  death  do  make  him  grin. 


Schurmayer's^  views  on  this  point  are  of  peculiar  interest, 
as   indicating  the  conservative  iealousy  which  guards 

Cannot  be  ,  =>.  .     .  .        *^ 

always  sup-  against  that  involuntary  dissimulation  on  the  patient's 
presse  .  ^^^^  which  makes  real  and  yet  at  the  same  time  responsi- 
ble emotions  so  difficult  to  distinguish  from  irresponsible  disease. 
"  Remorse,"  he  says,  "  often  affects  the  mind  so  powerfully  as  to 
assume  the  appearance  of  insanity.  The  smothered  self-reproach 
of  the  criminal  sometimes  expresses  itself  in  the  shape  of  deep  de- 


*  Meaning  the  Duke  of  Gloucester. 

344 


2  See  Gericht.  Med.,  §  519, 


REMORSE.  [§  415. 

jection,  and  sometimes  in  that  of  petulance  and  irritability.  Al- 
most every  defendant  who  is  guilty  will  be  seen  to  lapse  at  least 
periodically  into  a  deep  reverie,  with  the  eyes  staring  into  vacancy. 
The  most  consummate  villains  alone  are  exempt  from  such  feelings. 
Criminals  generally  endeavor  to  suppress  the  voice  of  conscience, 
because  they  fear  to  be  betrayed  by  it.  But  this  very  reaction  is 
perfectly  legible  in  their  faces,  gestures,  and  general  bodily  condi- 
tion. Under  these  circumstances  the  qualms  of  conscience  fre- 
quently assume  the  appearance  of  disease.  The  accused,  particu- 
larly if  in  confinement,  does  not  sleep  at  night  for  weeks,  and  con- 
sequently looks  pale  and  haggard,  loses  his  appetite,  and  speaks 
with  hesitation,  and  sometimes  with  trembling.  When  this  condi- 
tion reaches  a  point  of  great  intensity,  the  guilty  is  visited  by 
visions  and  hallucinations ;  avenging  angels  appear  to  him,  or  evil 
spirits,  phantoms,  or  the  shades  of  the  dead  and  injured.  Add  to 
this  a  little  superstition,  and  the  victim  is  firmly  convinced  of  the 
reality  of  these  apparitions,  and  regards  them  as  punishments  sent 
from  heaven.  In  the  course  of  the  trial  itself,  these  symptoms  are 
less  perceptible  ;  and  generally  the  culprit  hesitates  to  tell  an  offi- 
cial person  what  he  suffers  in  seclusion,  but  the  struggle  within 
frequently  breaks  out  in  spite  of  his  efforts,  or  at  least  interferes 
with  the  coherence  of  his  speech.  In  such  cases  a  man,  perfectly 
hale  in  mind  and  body,  will  frequently  talk  at  random,  or  at  least 
express  himself  in  so  confused  and  stupid  a  manner  as  to  induce 
doubts  of  his  sanity.  It  is  remarkable,  that  those  who  confess  their 
guilt  are  subject  to  these  attacks  equally  with  those  who  deny  it. 
It  might  be  supposed  that  the  criminals  who  have  made  a  public 
confession  would  experience  a  regenerating  sense  of  relief  in  con- 
sequence of  having  removed  a  load  from  their  minds  ;  but  the  con- 
fession often  precedes  the  first  sensations  of  remorse,  by  directing 
the  attention  to  the  moral  and  religious  aspects  of  the  deed. 

"  This  proves  that  even  a  confessed  criminal  should  be  treated 
with  great  circumspection.  Instead  of  overwhelming  him  with  re- 
proaches, the  victory  gained  by  his  integrity  over  his  fears  should 
be  held  up  to  himself  as  a  restorer  of  self-respect. 

"  The  more  depraved  order  of  culprits  do  not  allow  their  con- 
sciences to  drive  them  to  despair,  but  only  to  petulance  ;  but  even 
this  frame  of  mind  sometimes  goes  so  far  as  to  lead  the  subject  to 
do  the  most  incomprehensible  things,  such  as  asserting  things  against 

345 


§  416.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

reason,  refusing  to  answer,  or  causing  constant  trouble  and  vexation 
in  the  prison.  Such  persons  are  often  greatly  misunderstood,  some- 
times by  ascribing  their  offensive  conduct  solely  to  malice  and  spite, 
and  sometimes  by  regarding  them  as  demented  when,  driven  by 
their  chagrin,  they  lose  all  reflection,  and  say  or  do  things  to  their 
own  injury.  The  consciousness  of  crime,  coupled  with  the  despair 
of  expiation  consequent  upon  having  denied  it,  produce  an  internal 
schism  which  may  result  in  the  most  singular  and  distracting 
phenomena. 

"  A  tolerably  sure  criterion  of  an  awakened  conscience  is  often 
to  be  found  in  the  desire  of  the  culprits  for  some  consolatory  assur- 
ance. Even  those  who  deny  their  guilt  are  generally  anxious  to 
know  how  they  would  be  able  to  bear  the  condition  of  a  criminal 
sentenced  according  to  law.  In  many  cases  there  is  an  exaggerated 
idea  of  the  impending  punishment,  still  further  increased  by  the 
imaginings  which  haunt  the  prisoner's  solitude.  When  such  errone- 
ous notions  come  to  the  knowledge  of  the  examining  physician,  it  is 
perfectly  right  in  him  to  correct  them,  and  the  information  thus  im- 
parted will  generally  produce  a  change  of  feeling  which  at  once  dis- 
pels every  idea  of  mental  derangement."^ 

§  416.  Remorse  as  implying  sanity?' — Remorse,  though  some- 
Notaproof  ^^™®^  adduced  as  a  test  of  sanity,  is  an  emotion  which 
of  sanity  at   is  often  most  keenly  felt  by  those  who,  in  a  shock  of 

time  of  act.  .  ";  *'     .  ' 

transitory  madness,  have  committed  an  illegal  act.  No- 
thing, for  instance,  could  have  been  more  acute  than  the  anguish  of 
Mary  Lamb,  as  has  been  already  noticed,  when  she  awoke  to  the 
consciousness  that  her  mother  had  died  by  her  hand ;  and  similar 
were  Cowper's  expressions  of  misery  when  his  reason  was  tempo- 
rarily restored  and  he  had  gleamings  of  the  fact  that  he  had  at- 
tempted self-destruction  when  in  a  state  of  lunacy.  An  idiot  or 
imbecile,  it  is  true,  does  not  experience  remorse  ;  and,  in  point  of 
fact,  remorse  or  any  other  intelligent  emotion  would  be  conclusive 
refutation  of  the  allegation  of  idiocy  or  imbecility.  And  so,  also,  as 
to  maniacs  Avhile  their  mania  continues.^  But,  in  cases  of  transitory 
mania,  remorse,  or  a  feeling  of  distress  very  difficult  to  distinguish 

'  Schiirmayer,  Gericht.  Med.,  §  519.  3  See  on  this  point  citations  in  pamp. 
See  infra,  §  816.  Trial   of  Andrews,    Boston,  1868,  pp. 

2  See  infra,  §§  788-823.  276-7. 

346 


REMORSE  :    ANGER.  [§  419. 

from  it,  is  not  prevented,  after  recovery,  by  a  conviction  that  the 
act,  being  insane,  was  innocent.  Persons  of  perfect  reason  often 
suffer  acute  pain  and  distress  from  injuries  inflicted  on  others  through 
their  own  mere  misadventure,  though  there  was  on  their  part  no 
moral  blame.  And  such  is  peculiarly  likely  to  be  the  case  with 
those  whose  very  susceptibility  to  mania  rises  from  temperaments 
that  are  highly  strung.  It  has  been  noticed  that  by  such  the  in- 
tensity of  their  regret  at  insane  misconduct  is  often  in  proportion  to 
the  intensity  of  their  prior  mania. 

§  417.  On  the  other  hand,  absence  of  remorse  is  no  proof  of  in- 
sanity.   "  Indifierent  to  the  moral  turpitude  of  the  act,"    „     . 
is  sometimes  unfortunately  brought  forward  by  psycholo-   absence  of 
gical  experts  as  indicating  insanity,  but  there  are  few   proof  of 
hardened  criminals  by  whom  this  indifference  is  not  dis-   insanity, 
played.     Undoubtedly  our  prison  reports  give  instances  of  penitent 
and  reformed  prisoners  ;  but,  among  those  suffering  second  convic- 
tions, such   instances    are  very  rare.      Repentance  is  frequently 
feigned  in  such  cases,  but  is  rarely  proved  by  subsequent  voluntary 
reform.     A  chaplain  in  an  English  prison  illustrates  this  by  refer- 
ring to  a  criminal  who,  having  expressed  great  religious  contrition, 
spending  much  time  in  poring  over  the  Bible,  was  pardoned,  and 
after  his  pardon  returned  the  Bible  to  the  chaplain,  "  because  I 
have  no  more  use  for  it." 

Dr.  Liman  tells  us  that  he  has  observed  a  great  number  of  mur- 
derers, whom  he  had  watched  during  their  period  of  preliminary 
arrest,  and  whom  he  had  seen  mount  the  scaffold  or  enter  the  peni- 
tentiary for  life,  whose  remorseless  apathy,  indifference,  and  even 
levity,  produced  on  him  the  most  painful  impressions.  Such  torpor, 
though  proving  a  depraved  moral  sense,  is  no  distinctive  evidence 
of  lunacy. 

2.  Anger. 

§  418.  Anger,  as  related  to  "  homicidal  insanity"  will  be  here- 
after distinctively  considered.^ 

§  419.  "A  morbid  paroxysm  of  anger,"  Dr.  Rush  tells  us,  "  ap- 
pears in  a  preternatural  determination  of  the  blood  to  the  brain,  a 
turgescence  of  the  bloodvessels  of  the  face,  a  redness  of  the  eyes, 

>  Infra,  §  586. 

347 


§  422.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

an  increased  secretion  of  saliva,  which  is  discharged  bj  foaming  at 
the  mouth,  great  volubility  or  a  total  suppression  of  speech,  agita- 
tions of  the  fists,  stamping  of  the  feet,  uncommon  bodily  strength, 
convulsions,  hysteria,  bleeding  at  the  nose,  apoplexy,  and  death. 
Sometimes  this  disease  appears  with  paleness,  tremors,  sickness  at 
the  stomach,  quick  respiration,  puking,  syncope,  and  asphyxia.  It 
is  in  this  case  generally  combined  with  fear,  and  hence  arises  the 
abstraction  of  blood  from  the  brain,  and  its  determination  to  other 
parts  of  the  body."^ 

[§§  420-421  are  omitted  in  this  edition  for  the  purpose  of  con- 
densation.] 

§  422.  Schiirmayer  very  justly  remarks  that  in  practice,  anger 
,     and  revenge  afibrd  much  less  difficulty,  because  much 

Anger  and  ,.,...  .  . 

revenge  more  readily  distinguishable  from  insanity  than  is  re- 
sanit}^  than  'inorse.  With  the  more  depraved,  experience  tells  us 
IS  remorse,  ^j^^j.  ^-^^^  malignant  hatred  which  led  to  crime  is  often 
increased  after  the  crime  is  committed,  and  is  further  aggravated 
by  displeasure  at  the  unfavorable  testimony  of  witnesses.  The  fury 
of  such  miscreants  is  often  directed  against  the  judge,  the  keepers, 
and  all  who  contribute  to  the  execution  of  their  sentence.  In  the 
case  of  Carrigan,  who  was  convicted  in  North  Carolina,  some  years 
since,  of  murder,  so  high  did  his  temper  run,  that  the  defendant, 
immediately  after  the  verdict  of  conviction  was  rendered,  drew  forth 
a  pistol,  with  which  he  aimed  a  shot  at  the  prosecuting  attorney, 
and  then  shot  himself. 

In  the  fierce  outburst  of  passion,  it  is  quite  possible  to  mistake 
a  man  under  such  circumstances  for  a  madman,  particularly  where 
there  is  a  sentimental  predisposition  to  the  extension  of  this  plea, 
and  where  science  and  skill  are  not  at  hand  to  correct  such  errone- 
ous impressions.  But  these  views  will  vanish  if  the  examiner  ab- 
stains from  doing  anything  which  may  still  further  stimulate  the 
passions,  and  preserves  an  imperturbable  composure.  If,  after  this, 
a  severe  reprimand  is  found,  either  at  once  or  after  one  or  two 
repetitions,  to  make  a  wholesome  impression  and  quell  the  excite- 
ment, there  is  certainly  no  derangement  of  the  faculties  ;  for  a  man 
with  mania,  or  under  the  ravings  of  disease,  will  never  be  restored 
to  self-control  by  the  voice  of  reason.     Where  the  man  is  very  wild 

'  Rush  on  the  Mind,  p.  332, 

348 


ANGER  :    SHAME.  [§  424. 

and  debased,  reproaches  will  not  always  answer  the  purpose,  and  it 
becomes  necessary  to  menace  him  with  coercion.  The  manner  in 
which  such  announcements  are  received  will  also  suffice  to  remove 
all  doubts  of  his  sanity. 

3.  Shame. 

§  423.  The  feeling  of  shame  may  also  exert  a  very  considerable 

influence  on  the  demeanor  of  an  accused  man,  not  en-    „ 

,  «     .  Shame  may 

tirely  lost  to  this  sensation  by  a  long  course  of  vice,    produce  a 

Shame  rises  and  sinks  with  the  feeling  of  honor :  "  shame  sembHng 
is  the  disagreeable  perception  of  the  unfavorable  opinions  i^^sanity. 
entertained  of  us  by  others."  Men  of  ordinary  stamp,  who  value 
external  honor  far  above  the  dignity  of  self-respect,  can  imagine  no 
more  dreadful  fate  than  degradation  in  the  eyes  of  the  public.  By 
injudicious  treatment  such  individuals  may  be  reduced  to  a  state 
closely  resembling  insanity,  particularly  in  the  form  of  melan- 
choly, which  will  disappear  the  moment  a  more  judicious  course  is 
resorted  to. 

It  is  not  necessary  for  us,  in  order  to  make  out  the  similarity  of 
symptoms  between  insanity  and  excessive  shame,  to  find  many 
parallels  to  the  story  told  by  Dr.  Benton,  and  cited  without  protest 
by  Dr.  Rush,  of  a  schoolmaster  who  was  accidentally  discovered 
upon  a  close-stool  by  one  of  his  scholars,  and  who  in  consequence 
became  deranged.^ 

§  424.  Dr.  Rush  also  tells  us  of  an  American  Indian,  who  be- 
came deranged  and  destroyed  himself,  in  consequence  of 

I  '     {.         '  1      1  •  1  r><        1  •  Instances 

seeing  his  lace  in  a  looking-glass  soon  alter  his  recovery  of  insanity 
from  a  violent  attack  of  smallpox.  The  loss  of  one  eye  \^^^  ^^ 
by  an  affray  in  a  country  tavern,  which  materially 
affected  the  face,  produced  derangement  in  a  young  man  who  was 
afterwards  a  patient  in  the  Pennsylvania  Hospital.  There  are 
other  facts  which  show  the  depth  of  this  attachment  to  beauty,  in 
the  human  mind,  and  the  poignancy  of  the  distress  occasioned  by 
its  loss  or  decay.  The  once  beautiful  Lady  Wortley  Montague 
tells  a  friend,  in  one  of  her  letters,  that  she  had  never  seen  herself 
in  a  looking-glass  for  eleven  years,  solely  from  her  inability  to 
bear  the  mortifying  contrast  between  her  appearance  in  the  two 

'  Rush  on  the  Mind,  p.  38. 

349 


§  426.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

extremes  of  her  life.  A  clergyman  in  Maryland  became  insane  in 
consequence  of  having  permitted  some  typographical  errors  to 
occur  in  a  sermon  which  he  had  published  on  the  death  of  General 
Washington.^ 

§  425.  A  young  gentleman  of  considerable  promise,  of  high 
Suicide  natural  and  acquired  attainments,  had  been  solicited  to 
from  shame  make  a  speech  at  a  public  meeting,  which  was  to  take 
place  in  the  town  in  which  he  resided.  As  he  had  never  attempted 
to  address  extemporaneously  a  public  body,  he  expressed  himself 
extremely  nervous  as  to  the  result,  and  asked  permission  to  with- 
draw his  name  from  the  published  list  of  speakers.  This  wish  was 
not,  however,  complied  with,  as  it  was  thought  that  when  the 
critical  moment  arrived  he  would  not  be  found  wanting  even  in  the 
art  of  public  speaking.  He  had  prepared  himself  with  considerable 
care  for  the  attempt.  His  name  was  announced  from  the  chair, 
when  he  rose  for  the  purpose  of  delivering  his  sentiments.  The 
exordium  was  spoken  without  any  hesitation ;  and  his  friends  felt 
assured  that  he  would  acquit  himself  with  great  credit.  He  had 
not,  however,  advanced  much  in  his  prefatory  observations  when 
he  hesitated,  and  found  himself  incapable  of  proceeding.  He  then 
sat  down,  evidently  excessively  mortified.  In  this  state  he  retired 
to  a  room  where  the  members  of  the  committee  had  previously  met, 
and  cut  his  throat  with  his  penknife.  He  wounded  the  carotid 
artery,  and  died  in  a  few  minutes.^ 

4.   G-rief. 

§  426.  Shakspeare  touchingly  as  well  as  naturally  describes  the 
Symptoms  Symptoms  of  that  species  of  morbid  grief  which  becomes 
of  grief.        monomaniac  by  self-confinement  and  self -involution : — 

"  Grief  fills  up  the  room  of  my  absent  child  ; 
Lies  in  Ms  bed,  walks  up  and  down  with  me ; 
Puts  on  his  pretty  looks,  repeats  his  words  ; 
Remembers  me  of  his  gracious  parts  : 
Stuflfs  out  his  vacant  garments  with  his  form ; 
Then  I  have  reason  to  be  fond  of  grief.'' ^ 

"  Physicians,"  says  Dr.  Rush,  "in  their  unsuccessful  efforts  to 
save  life,  are  often  obliged  to  witness  this  passion.  It  is  of  con- 
sequence for  them,  therefore,  to  be  well  acquainted  with  its  symp- 

>  Rush  on  the  Mind,  p.  40.  «  Winslow's  Anatomy  of  Suicide,  p.  64. 

350 


GRIEF.  [§  428. 

toms  and  cures.  Its  symptoms  are  acute  and  chronic.  The  former 
are,  insensibility,  syncope,  asphyxia,  and  apoplexy  ;  the  latter  are 
fever,  wakefulness,  sighing,  with  and  without  tears,  dyspepsia, 
hypochondriasis,  loss  of  memory,  gray  hairs,  marks  of  premature 
old  age  in  the  countenance,  catalepsy,  and  madness.  It  sometimes 
brings  on  sudden  death,  without  any  signs  of  previous  .disease,  either 
acute  or  chronic.  Dissections  of  persons  who  have  died  of  grief 
show  congestion  in  and  inflammation  of  the  heart,  with  a  rupture  of 
its  auricles  and  ventricles."^  But  there  are  instances  in  which  the 
sympathy  of  the  heart  with  the  whole  system  is  so  completely  dis- 
severed with  grief,  that  the  subject  of  it  discovers  not  one  mark  of 
it  in  his  countenance  or  behavior.  On  the  contrary,  he  sometimes 
exhibits  signs  of  unbecoming  levity  in  his  intercourse  with  the  world. 
This  state  of  mind  soon  passes  away,  and  is  generally  followed  by 
all  the  obvious  and  natural  signs  of  the  most  poignant  and  durable 
grief.  There  is  another  symptom  of  grief  which  is  not  often  noticed, 
and  that  is  profound  sleep.  I  have  often  witnessed  it,  even  in 
mothers,  immediately  after  the  death  of  a  child.  Criminals,  we  are 
told  by  Mr.  Akerman,  the  keeper  of  the  Newgate,  in  London,  often 
sleep  soundly  the  night  before  their  execution.  The  son  of  General 
Custine  slept  nine  hours  the  night  before  he  was  led  to  the  guillo- 
tine, in  Paris.  These  facts,  and  many  similar  ones  that  might  be 
mentioned,  will  serve  to  vindicate  the  disciples  of  our  Saviour  for  a 
want  of  sympathy  with  him  in  his  suffering.  They  slept  during  his 
agony  in  the  garden,  because  their  "  flesh  was  weak,"  and  in  con- 
sequence of  "  sorrow  having  filled  their  hearts. "^ 

§  427.  Tears,  or  the  capacity  to  weep,  form  no  test  in  this  re- 
spect.^    Joanna,  the  mother  of  Charles  V.,  was  never    „    ^  .^ 
known  to  weep  after  the  first  shock  of  her  husband's   weepno_ 
death,  and  survived  him  forty-five  years,  brooding  in 
insanity  over  her  loss,  without,  Mr.  Prescott  tells  us,  shedding  a 
tear.*     Insane  persons  are  rarely  known  to  weep. 

§  428.    One   distinction,  however,  may  be  relied  on   Insanity 

.  ,        ,  .    ,  /^    •    f.  1         •  .  not  relieved 

With  almost  certainty,     (iriet  may  be,  m  most  cases,    by  counter- 
relieved  by  the  counter-irritation  of  some  affection  other   ^["e^o!^"^"' 
than  that  wounded  ;  but  insanity  never. 

'  Late  researches,  however,  indicate        ^  Cheyne   on   Derangement  in  Con- 
siich  cases  to  he  very  exceptional.  nection  with  Religion,  p.  107. 

2  Rush  on  the  Mind,  pp.  346,  347.  ''  3  Pres.  Ferd.  8th  ed.  2(30. 

351 


§  431.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLT. 

5.  Home-sickness  {Nostalgia)} 

Nostaipia  §  429.  This  often  assumes  a  shape  hardly  distinguish- 

hj^s^teria.^      able  from  A?/sf ma.     Thus  Goldsmith  writes : — 

"  The  intrepid  Swiss  that  guards  a  foreign  shore, 
Condemn'd  to  climb  his  mountain-cliflFs  no  more, 
If  chance  he  hear  the  song,  so  sweetly  wild. 
Which,  on  these  cliffs,  his  infant  hours  beguil'd, 

Melts  at  the  long-lost  scenes,  that  round  him  rise, 
And  sinks,  a  martyr  to  repentant  sighs." 

"It  is  remarkable,"  says  Dr.  Rush,  "that  this  disease  is  most 
common  among  the  natives  of  countries  that  are  the  least  desirable 
for  beauty,  fertility,  climate,  or  the  luxuries  of  life.  They  resem- 
ble, in  this  respect,  in  their  influence  upon  the  human  heart,  the 
artificial  objects  of  taste  which  are  at  first  disagreeable,  but  which 
from  habit  take  a  stronger  hold  upon  the  appetite  than  such  as  are 
natural  and  agreeable."^ 

§  430.  Nostalgia,  as  Siebold^  tells  us,  develops  itself  principally 
in  that  period  of  childhood  approaching  puberty.  When 
into  ^^^  the  malady  is  of  long  continuance,  it  runs  into  voluntary 
delirium.  star^^ation,  sleeplessness,  delirium,  derangement  of  the 
senses,  together  with  the  usual  melancholy  consequences  of  unsatis- 
fied desire.  Sometimes  symptoms  of  pyromania  are  discoverable. 
Thus  we  are  told  of  a  girl  of  ten  years  who  exposed  two  children, 
committed  to  her  care,  to  the  flames,  under  the  stress  of  home- 
sickness.'* 

§  431.  "Another  variety  of  melancholia,"  says  Griesinger,  "is 
that  form  which  is  characterized  by  a  longing  for  one's 
noTlhfiys    native  land,  and  by  the  predominance   of  those   ideas 
a  mental       -which  refer  to  a  return  to  one's  home — home-sickness. 

"An  analogous  afl"ection  is  sometimes   developed  in 

1  Orfila  gives  the  following  symptoms  ^  Rush  on  the  Mind,  pp.  38,  39. 

by  which  nostalgia  may  be  recognized  :  ^  Gericht.  Med.  §  213. 

Profound  sadness  to  which  succeeds  a  *  See  Jahrb.  des  Osterreich.  Staates, 

gloomy  melancholy,  silence  and  a  great  15  Bd.,  1834,  §  597.     See  also  the  arti- 

desire  to  be  alone,  a  great  indifference  cle   under   the   head   of  Heimweh,    by 

for  everything  which  does  not  recall  Jesse,  in  the    Encyclop.  Worterb.  der 

the  objects  regretted.     Spasmodic  con-  Med.  Wissensch.,  Band  25,  Berl.  1841, 

traction  of  the  stomach,  prostration  of  §  292. 
mind  and  body,  marasmus,  etc. — Med. 
Leg.,  vol.  i.  p.  331.     Paris,  1848. 

352 


HOME-SICKNESS.  [§  431  a. 

prisoners  by  want  of  employment,  and  frequently  also  by  the  co- 
operating influence  of  bad  nourishment,  damp  cells,  and  onanism. 
Nostalgic  melancholia  is  sometimes  accompanied  by  symptoms  of 
congestion  of  the  head,  and  even  of  cerebral  inflammation  (Larrey) : 
in  this  form,  too,  the  same  kind  of  hallucinations  appear  (visions  of 
home  scenes,  etc.).  Not  unfrequently  we  see  individuals  affected 
with  a  greater  or  less  degree  of  nostalgia  commit  acts  of  violence 
(for  example,  the  murder  of  young  children,  incendiarism,  etc.,  by 
servants).  Those  acts  proceed  more  frequently  from  evidently 
selfish  motives,  as  from  the  desire  to  escape  from  a  forced  and 
painful  position,  than  from  the  impulse,  which  also  comes  involun- 
tarily in  the  melancholic,  to  procure  a  certain  degree  of  solace 
through  the  perpetration  of  some  frightful  deed.  Naturally,  home- 
sickness is  not  always  a  mental  disease :  this  is  of  importance  in  a 
medico-legal  point  of  view.  In  itself  it  is  a  mournful  disposition  of 
spirit  suggested  by  external  circumstances.  It  becomes  insanity 
when  this  disposition  so  strongly  impregnates  all  the  faculties  of 
the  mind  as  utterly  to  exclude  the  entrance  of  any  other  sentiment 
and  when  it  is  accompanied  by  delirious  conceptions  and  hallucina- 
tions ;  a  state  in  which  physical  derangements — e.  g.^  loss  of  appe- 
tite, emaciation,  etc. — are  seldom  absent.  In  short,  home-sickness 
ought  in  foro  to  be  regarded  as  a  mental  affection  only  when  it 
presents  the  usual  signs  of  insanity.  The  want  of  reflection,  which 
is  the  most  important  point  in  concrete  cases,  ought  not  to  be  ad- 
mitted when  the  individual  is  perfectly  competent  to  engage  in  his 
usual  avocations  and  perform  his  duties,  as  is  the  case  with  many 
of  those  young  incendiaries  afilicted  with  home-sickness."^ 

§  431  a.  "A  recent  number  of  the  Medical  and  SurgicalReporter 
has  a  valuable  paper  from  Dr.  Calhoun,  Surgeon-in-chief,    j^j     ^^ 
2d  division,  3d  corps,  on  nostalgia  as  a  disease  of  field   either  cause 

p  .  .  .or  result 

service.     After  alluding  to  the  peculiar  causes  operating    of  other 
to  produce   the  disease,  he   mentions  a  case  of  simple 
nostalgia,  with  loss  of  appetite  and  general  impairment  of  functions, 
occurring  in  an  officer,  and  remarks  :  — 

"  But  I  fancy  that  pure  uncomplicated  cases  of  nostalgia,  re- 
quii'ing  treatment,  are  seldom  met  with  in  the  field.  It  is  more 
frequently  a  complication  or   a  cause  of  other  disease.     The  very 

'  Griesinger's  Mental  Pathol.,  Syden.  ed.  1867,  §  122. 

VOL.  I.— 23  353 


§  433.]      MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

existence  of  nostalgia  presupposes  a  state  of  mental  depression 
extremely  favorable  to  the  contraction  of  disease.  The  tjpho- 
malaria  fever  and  camp  diarrhoea  are  diseases  asthenic  in  their 
character,  and  always  characterized  by  marked  depression  of  all 
the  vital  functions.  The  state  of  mental  depression,  that  is  coex- 
istent with  nostalgia,  acts  as  a  predisposing  cause  of  these  diseases, 
or,  as  I  have  frequently  found,  is  coexistent  with  them.  Sometimes 
the  nostalgia  is,  on  the  contrary,  produced  by  other  diseases. 

"  The  patient  becomes  disgusted  with  his  condition,  and  sighs  for 
the  comforts  of  home,  until  his  yearning  for  home  scenes  becomes 
morbid.  But,  be  the  nostalgia  the  cause  or  the  result  of  diarrhoea, 
dysentery,  or  typhoid  fever,  it  is  in  either  event  a  complication  to 
be  dreaded  as  one  of  the  most  serious  that  could  befall  the  patient."^ 

6.  Fear. 

§  432.  The  distinction  between  sane  and  insane  fear  is  one  which 
is  of  much  importance  in  several  branches  of  forensic 
between  medicine.  A  will  is  made,  for  instance,  under  the  influ- 
insane  fear  ence  of  fear ;  and  the  question  to  be  determined  is,  is 
important.  ^^^  yielding  to  this  emotion  the  consequence  of  sane  or 
insane  volition  ?  Or  a  contract  is  made  under  threats  ;  and  here 
again  the  same  inquiry  emerges.  It  is  true  that  in  both  these  cases 
the  question  is  mixed  with  that  of  dolus  or  fraud.  A  party  cannot 
take  advantage  of  his  own  wrong.  He  who,  by  acting  on  the  fears 
even  of  a  sane  person,  obtains  an  obligation  from  such  person,  can- 
not, as  a  general  rule,  enforce  such  obligation  ;  and  when  a  will  is 
obtained  by  fear,  it  requires  but  slight  evidence  of  mental  debility 
in  the  testator  to  set  the  will  aside. 

§  483.  In  criminal  cases,  the  question  presents  itself  more 
Importance  squarely,  A.  man,  under  the  influence  of  fear,  kills 
ofquestion.  another.  He  may  kill  a  supposed  enemy,  in  what  is 
claimed  to  be  self-defence.  Or  he  may  kill  his  own  children,  to 
avoid,  he  may  claim,  some  greater  evil  by  which  they  are  threat- 
ened. Now,  is  the  party  under  such  circumstances  sane  or  insane  ? 
Is  he  responsible  so  far  as  penal  discipline  is  concerned  ? 

'  Amer.  Journ.  of  Ins.,  April,  18ti4. 

354 


FEAR.  [sS  436. 

§  434.  First,  in  answering  this  question,  let  us  remember  what 
fear  is.     Locke  defines  it  to  be  "  an  uneasiness  of  the    usually 
mind  upon  the  thought  of  some  future  evil  likely  to  befall   l^^^^l^^_ 
us."    It  is  i\\Q  futurity  of  the  evil  that  forms  the  essence   gency. 
of  the  emotion.     Shakspeare  Avell  says  that — 

^^  Present  fears 
(z.  e.  fears  that  are  realized) 
Are  less  than  horrible  imaginings. ^^ 

As  the  dreaded  event  becomes  certain,  fear,  in  its  technical  sense, 
gives  way  to  blank  despondency.  Thus,  if  we  could  foresee  the  con- 
flagration by  which  our  home  is  to  be  destroyed,  or  the  death-stroke 
by  which  one  of  our  children  is  in  a  short  time  to  be  snatched  from 
us,  this  foreknowledge  would  envelop  us  in  gloom,  and  paralyze 
proportionally  our  energies.  On  the  other  hand,  such  certainty  in 
a  coming  disaster  may  produce  a  calm  and  adequate  courage  which 
uncertainty  might  distract.  True  fear  is  of  a  contingent  evil ;  in 
which  case  the  "  horrible  imaginings"  of  which  Shakspeare  speaks 
find  play.  So  far  as  concerns  the  intellect,  the  first  eifect  of  terror 
of  this  kind  is  in  the  highest  degree  stimulating.  The  crowds  that 
collect  around  a  telegraph  ofiice  after  a  great  battle ;  the  frenzied 
anxiety  with  which  newspapers  are  clutched ;  the  preternatural 
rapidity  with  which  their  contents  are  mastered ;  the  intense  acute- 
ness  of  the  hearing  when  the  postman's  step  is  awaited;  the  vividness 
with  which  calculations  are  made  as  to  the  time  when  the  news  will 
arrive  ;  the  exhaustion  which,  when  the  result  is  known,  measures 
the  intensity  of  the  prior  tension ;  the  haggard  countenance  ;  the 
hair  which  a  single  night's  agony  has  turned  gray ;  these  are  illus- 
trations of  the  eifect  of  fear. 

§  435.  On  the  physical  side,  the  immediate  effects  of  terror  vary 
with  particular  constitutions.     There  are  some  whom  its    Effects  of 
first   shock   completely    paralyzes.^     There    are    others    ^^.'i^'^f.^ 
whom  it  prompts  to  rapid  instinctive  flight.     There  are    ent  consti- 
others — and  each  of  these  specifications  applies  to  the 
lower  animals  as  well  as  to  men — who  are  stung  by  it  to  wild  and 
destructive  resistance. 

§  436.    "  The  appearances,"   says  Mr.  Bain,  speaking  of  the 

1  See  19  Journ.  Ment.  Sci.  621. 

355 


§  437.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

Symptoms  physical  results  of  fear,^  "  may  be  distributed  between 
o  ear.  effects  of  relaxation  and  effects  of  tension.  The  relaxa- 
tion is  seen,  as  regards  the  muscles,  in  the  dropjDing  of  the  jaw,  in 
the  collapse  overtaking  all  organs  not  specially  excited,  in  trem- 
blings of  the  lips  and  other  parts,  and  in  the  loosening  of  the  sphinc- 
ters. Next  as  to  the  organic  processes  and  viscera.  The  digestion 
is  everywhere  weakened ;  the  flow  of  saliva  is  checked  ;  the  gastric 
sensation  arrested  (appetite  failing)  ;  the  bowels  deranged.  The 
expiration  is  enfeebled.  The  heart  and  circulation  are  disturbed ; 
there  is  either  a  flushing  of  the  face,  or  a  deadly  pallor.  The  skin 
shows  symptoms  of  derangement — the  cold  sweat,  the  altered  odor 
of  the  perspiration,  the  creeping  action  that  lifts  the  hair.  The 
kidneys  are  directly  or  indirectly  affected.  The  sexual  organs  feel 
the  depressing  influence.  The  secretion  of  milk  in  the  mother's 
breasts  is  vitiated.  The  increased  tension  is  shown  in  the  stare  of 
the  eye  and  the  raising  of  the  scalp  (by  the  occipito-frontalis  mus- 
cle), in  the  inflation  of  the  nostril,  the  shrill  cry,  tJie  violent  move- 
ments of  protection  or  flight.  The  stare  of  the  eye  is  to  be  taken 
as  an  exaggerated  fixing  of  the  attention  on  the  dreaded  object ; 
and  there  concurs  Avith  it  an  equally  intense  occupation  of  the 
thoughts  in  the  same  exclusive  direction." 

§  437.  In  order  to  measure,  in  the  next  place,  the  legal  relations 

of  fear,  it  is  necessary  to  consider  from  what  functions 
fear^tothe  of  the  mind  it  springs.  Describing  these  functions  ac- 
^f^h**°°^  d   cording  to  the  definition  already  given,  as  (1)  feeling, 

(2)  will  or  volition,  and  (3)  thought,  we  may  readily 
conceive  that  fear,  in  its  most  simple  and  rudimental  shape,  may 
flow  directly  and  exclusively  from  feeling.  A  sleeping  infant,  or 
an  idiot,  or  an  animal  of  the  lowest  grade,  feels  a  puncture,  and 
starts  convulsively  back  to  prevent  an  extension  of  the  wound. 
But  in  almost  every  other  conceivable  case,  fear  is  the  result  of 
feeling  and  thought  combined.  In  fact,  in  most  cases,  fear  involves 
the  several  powers  which  intellect  includes — memory,  perception, 
conception,  abstraction,  judgment,  and  imagination.  If  the  mind 
be  diseased,  then  it  communicates  its  disease  to  the  fear  Avhich 
flows  from  it,  and  this  fear  becomes  an  abnormal  propensity. 

'  Mental  and  Moral  Science,  London,  1868,  p,  233. 

856 


FEAR.  [§  441. 

§  438.  Let  us  apply  this  to  the  case  of  a  man  killing   Killing  un- 

dGr  ttiG  ill— 

another  under  the  influence  of  fear.    This  killing  may   fluenceof " 
have  been  in  order  to  avert  the  threatened  danger  from     ^^^' 
the  person  killed,  or  to  avert  it  from  self. 

§  439.    Of  the  first  class  the  principal  instances  are  those  of 
homicides  by  parents  of  children  to  preserve  the  children 
from  starvation  or  some  other  impending  disaster.     In    threatened 
such  cases,  it  is  hardly  possible  to  view  the  mind  as  sane,    person 
However  it  may  be  in  barbarous  lands,  the  systems  of     ^ 
charity  existing  in  Christian  countries  are  such  as  to  make  the  kill- 
ing of  children  by  parents  to  avoid  starvation  explicable  only  on 
one  of  two  grounds — diseased  imagination  amounting  to  actual  in- 
sanity, or  diseased  pride  by  which  such  insanity  is  closely  ap- 
proached. 

§  440.  But  much  more  complex  questions  arise  when  insane  fear 
is  set  up  to  excuse  the  killing  of  another  in  supposed  self-   g  j 
defence.     To  consider  these  questions  we  must  inquire    posed  seif- 
what  is  the  effect  of  fear  on  persons  of  imbecile  or  dis- 
ordered intellects. 

^  441.  First,  as  to  the  imbecile.     On  this  point  some   s.  in  the 
interesting  observations  are  made  by  Professor  Lazarus,   beciies. 
in  the  Zeitschrift  fur  Vblkerpsychologie  for  1868. 

"  We  often  find  in  our  lunatic  asylums  a  general,  and  it  may  be 
even  said  absolute,  fear  (Schreckhaftigkeit,  Pantophobia),  which 
with  us  is  a  symptom  of  deep  disease,  but  which  is  mentioned  by 
travellers  as  a  not  unusual  occurrence  among  nations  of  a  low  order 
of  development.  .  .  .  Does  it  not  seem  when  we  enter  a  ward  con- 
taining nymphomaniac  or  similarly  affected  patients,  as  if  we  had 
entered  into  a  company  made  up  of  parties  of  Laps,  or  Jakutes, 
whom  Castren  and  Erman  describe :  'A  woman,  alarmed  by  a  sud- 
den clapping  of  the  hand,  tore  about  as  if  frantic,  biting  and  scratch- 
ing all  who  were  by.  Another,  when  alarmed,  threw  her  child  in 
the  sea.  A  blow  having  been  struck  by  a  hammer  on  the  outer 
wall  of  a  hut  in  which  some  Laps  were  sitting  in  careless  conversa- 
tion, they  all  fell  instantaneously  on  the  ground,  twitched  for  a  mo- 
ment with  their  hands  and  feet,  and  then  lay  as  motionless  as 
corpses.  After  awhile  they  began  to  move  again,  and  then  behaved 
as  if  nothing  unusual  had  happened.'  This  last  peculiarity  is 
highly  characteristic.     '  The  East-Jaken,  like  the  Laps,'  remarks 

357 


§  442.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGIC  ALLY. 

Bastran,  '  are  very  timid,  and  are  frightened  (as  in  Pantophobia) 
by  the  merest  trifles.  .  .  .  Every  unexpected  movement,  every  call 
or  whistle,  and  every  surprise  makes  him  beside  himself,  and  throws 
Mm  in  a  sort  of  rage.  By  the  Samojedens  this  rage  is  so  great 
that,  without  Jcnou'ing  what  they  do,  they  seize  the  first  axe,  hnife, 
or  other  weapon,  and  seek  to  wound  the  bystanders.^  ^^ 

Cases  of  a  similar  character  are  not  unknown  to  our  criminal  re- 
ports. Men  of  weak  minds  have  been  so  affected  by  fear  as  in 
their  frenzy  to  strike  down  innocent  strangers,  and  especially  is 
this  the  case  with  epidemic  fears.  Now,  in  such  cases,  the  inquiry 
is,  was  the  defendant  imbecile,  or,  at  the  best,  of  a  low  grade  of 
intelligence  bordering  on  imbecility  ?  If  he  was,  his  action,  in  a 
paroxysm  of  fear,  was  insane.  But  this  mental  imbecility  must  be 
substantively  proved.^  Fear  itself  is  no  defence  ;  for  otherwise 
there  is  no  act  of  violence  that  could  not  be  thus  defended. 

§  442.  The  same  distinction  applies  when  the  defence  is  an  in- 
sane delusion  as  to  the  person  by  whom  the  defendant 

Fear  with  '^  ^ 

those  whose  believes  himself  to  be  endangered.  A  man  conceives 
are  disor-  that  another  is  about  to  kill  him,  or  to  ififlict  on  him 
dered.  maiming  or  other  great  injury  ;  and  in  supposed  defence 

the  assailant  is  intentionally  killed.  The  plea  of  insanity,  as  is 
elsewhere  shown,^  may  be  rightfully  interposed  where  the  defendant 
is  acting  under  an  insane  delusion  which,  if  true,  would  relieve  the 
act  from  responsibility,  or  where  his  reasoning  powers  are  so  de- 
praved as  to  make  the  commission  of  the  particular  act  the  natural 
consequence  of  the  delusion.  Even  where  there  is  no  pretence  of 
insanity,  it  has  been  held,  that,  where  a  man,  according  to  his  own 
lights,  has  reasonable  ground  to  believe  himself  in  danger  of  death, 
this  would  be  a  good  defence. ^  Such,  indeed,  was  the  ground  of 
the  ruling  in  Levet's  case  ;  a  case  which  has  stood  the  test  of  two 
centuries,  and  which  may  be  viewed  as  at  the  basis  of  the  English 
common  law.  The  defendant,  in  that  celebrated  case,^  was  abed 
and  asleep  in  his  house,  when  he  was  told  that  thieves  were  break- 
ing in ;  and,  in  his  fright,  with  his  mind  still  torpid  with  sleep, 

1  See  articles  in  1  Alienist  and  Neii-  "  Ibid.  This  is  fully  shown  in  Wh. 
rologist,    106  ;    IS    Journ.    Ment.    Sci.     Cr.  L.  8th  ed.  §  491  et  seq. 

235.  *  Cro.  Car.  438  ;  1  Hale,  42,  474. 

2  Supra,  §  125. 

358 


SIMULATED   INSANITY. 


[§  443. 


dashed  down  stairs,  and  ran  his  sword  through  a  visitor  who  was 
aiding  one  of  the  servants  of  the  family.  This  was  held  homicide 
by  misadventure  ;  nor  has  this  ruling  ever  been  questioned.  Nor, 
though  there  is  some  conflict  of  decision  when  the  defence  set  up  is 
simply  weakness  of  intellect  not  amounting  to  imbecility,  can  it  be 
questioned  that  a  similar  result  will  follow  in  all  cases  where  the 
offence  was  the  product  of  fear  so  shaped  by  an  insane  delusion  as  to 
make  the  killing  of  the  supposed  assailant  appear  to  the  offender  to 
be  the  only  means  by  which  his  own  life  could  be  preserved. 

I.    SIMULATED  INSANITY.^ 

\_Fo7'  cases  of  simulation,  see  Ajjpendix  to  third  edition  of  this 
work,  §§  834,  835,  836,  843.]^ 

1.  Examination. 

§  443.  In  every  case  the  examining  physician  will  be  led  at  once 
to  inquire,  whether  the  apparent  abnormal  state  of  mind 
be  real  or  feigned.      One  thing,  however,  must  not  be    of  feigned 
overlooked,  and  this  is  that  impostors  of  this  kind  are 
very  rarely  able  to  keep  up  the  character  of  the  disease  assumed 


'  In  relation  to  simulated  insanity, 
M.  Orfila  says,  that,  as  there  exists  in 
the  world  a  very  false  idea  of  madmen, 
the  one  who  simulates  insanity,  after 
this  idea,  will  i^erform,  at  every  in- 
stant, contradictory  and  false  acts ; 
thus,  he  will  pretend  not  to  remember 
his  past  actions,  he  will  not  recognize 
those  whom  he  knows  very  well,  he 
will  not  make  a  single  correct  reply  to 
questions  that  are  addressed  to  him. 
His  features  will  not  have  the  expres- 
sion of  such  a  violent  condition ;  he 
cannot  for  so  long  a  time  prevent  him- 
self from  sleeping  ;  he  will  play  the 
fool  particularly  whilst  he  thinks  him- 
self observed ;  finally,  his  pretended 
malady  will  not  have  developed  itself 
until  he  feared  the  pursuit  of  justice  ; 
it  will  not  have  been  preceded  by  that 
originality  of  character,  by  those 
marked  symptoms  of  moral  disorder 
which  are  observable  in  the  majority 


of  cases  of  insanity. — Med.  Leg.,  tome 
i.  p.  400.  Paris,  1848.  See  also  Med. 
Leg.,  J.Briand,  p.  396.  Paris,  1852. 
See,  on  this  point,  Principles  of  Medical 
Psychology,  being  the  outlines  of  a 
course  of  Lectures  by  Baron  Ernest 
von  Feuchtersleben,  M.D.  Vienna, 
1845.  Translated  from  the  German  by 
the  late  H.  Evans  Lloyd,  Esq.  Revised 
and  edited  by  B.  G.  Babington,  M.D., 
F.R.S.,  etc.  London,  printed  for  the 
Sydenham  Society,  1847,  p.  376.  See, 
also,  an  article  by  Dr.  Bucknill,  13 
Am.  Journ.  of  Ins.  354  ;  and  essay  by 
Dr.  W.  S.  Chipley,  in  22  Am.  Journ. 
of  Ins.  5. 

2  See,  also,  cases  reported  in  18  Journ. 
Ment.  Sci.  390  ;  Waltz's  case,  rep.  31 
Am.  Journ.  Ins.  50  ;  GaiTey's  case,  35 
Am.  Journ.  Ins.  534  ;  Barr's  case,  ibid. 
411 ;  also  an  article  in  31  Am.  Journ. 
Ins.  24. 

359 


§  444.]        MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

with  consistency,  and  without  involving  themselves  in  contradictions. 
"  How  hard  it  is  on  the  stage,"  remarks  Dr.  Bucknill,^  "  and  for  a 
few  minutes  onlv,  for  a  man  to  represent  the  manners  of  a  sailor,  a 
peasant,  an  old  man,  or  any  other  characteristic  manners,  so  that 
the  deception  shall  be  acknowledged  complete  !  But  the  histrionic 
powers  of  a  feigning  maniac  or  melancholic  must  be  kept  for  days 
and  weeks  on  the  stretch  in  the  representation  of  manners  and  modes 
of  thought  far  more  difficult  to  imitate  than  those  which  are  usually 
the  subject  of  theatrical  art.  Dr.  Rush  is  reported  to  have  dis- 
criminated feigned  from  real  insanity  by  the  relative  rapidity  of  the 
pulse  ;  Dr.  Knight  and  other  writers  have  claimed  the  same  power 
for  the  sense  of  smell.  At  the  present  day  the  deposits  in  the 
urine  would,  Ave  suppose,  be  appealed  to.  Much  reliance,  however, 
is  not  to  be  placed  upon  any  one,  or  even  upon  several,  of  the 
physical  signs  of  nervous  disturbance.  They  have  a  scientific  but 
scarcely  a  diagnostic  value.  They  may  serve  to  direct  the  inquiries 
of  the  physician,  or  even  to  confirm  his  opinion  founded  upon  other 
data  ;  but  standing  by  themselves  they  are  of  little  importance  in 
the  diagnosis  of  insanity." 

§  444.  It  is  important,  to  adopt  here  the  precaution  prescribed 

by  Schiirmayer,^  to  watch  the  subject  most  closely  when 
servation  he  supposes  himself  least  observed,  as  at  such  times  he 
necr^arv      generally  drops  his  mask,  which  is  irksome  to  him.     In 

all  such  investigations  the  physician  must  never  show  the 
most  trifling  sign  of  doubt  or  hesitation  ;  he  must,  on  the  contrary, 
appear  to  know  everything,  in  order  to  discover  everything,  and 
must  present  a  firm  and  imposing  front  in  all  his  intercourse  with 
the  accused.  Where  the  disease  in  question  is  of  such  a  nature, 
as,  if  genuine,  to  interfere  with  or  suspend  sleep,  it  becomes  neces- 
sary to  watch  the  patient  unobserved  at  night.  To  subject  him 
purposely  to  mental  irritation  or  excitement  is  improper,  reprehensi- 
ble, and  liable  to  cause  harm.  Threats  of  painful  medicines  or  ope- 
rations are  in  Germany  admissible  where  the  processes  threatened 
are  really  indicated  by  therapeutics,  but  the  execution  of  such  threats 
must  depend  upon  the  principles  laid  down  in  another  part  of  this 
work,  in  reference  to  the  tests  applicable  to  feigned  bodily  diseases. 

>  Bucknill  on  the  Diagnosis  of  In-        2  Gericlit.  Med.  §  392.     See  §§  341- 
sanity.  344. 

360 


SIMULATED    INSANITY.  [§  445. 

2.  Reasons  for  susjjecting. 

§  445.  Schiirmayer  gives  the  following  reasons  for  suspecting 
dissimulation  or  deception  : — 

1 .  When  the  party  has  committed  some  act,  the  punishment  of  which 
he  would  escape  by  inducing  a  belief  in  his  aberration  of  mind,  in  this 
case  the  comparison  of  the  offence  committed,  with  the  form  of  mental 
disease  assumed,  will  often  suffice  to  confirm  the  suspicion.^ 

2.  When  the  individual  has  frequently  expressed  an  aversion  to 
a  particular  occupation  or  profession  he  is  expected  to  assume,  as, 
for  instance,  that  of  a  soldier. 

3.  When  the  general  character  of  the  party  is  open  to  imputa- 
tions of  malice  and  deceit. ^ 

4.  When  it  is  impossible  to  discover  any  previous  indications,  phy- 
sical or  mental,  of  the  pretended  derangement  of  the  mental  faculties.^ 

A  late  German  trial  brings  before  us  a  state  of  facts  well  worthy 
of  being  considered  by  those  concerned  in  religious  and  moral 
education.  The  parents  of  two  girls,  one  eleven  and  the  other 
fifteen,  claimed  public  relief  on  the  ground  that  the  latter  Avere 
subject  to  epileptic  fits.  The  patients  were  for  months  subject  to 
medical  scrutiny,  and  were  received  into  a  hospital,  where,  during 
intermission,  as  well  as  of  paroxysm,  they  were  under  constant  ob- 
servation. The  elder,  in  particular,  was  affected  by  the  disease  in 
its  worst  shape  ;  being  prostrated  by  convulsive  attacks  of  extraor- 
dinary violence,  which  afterwards  left  her  in  a  state  of  entire 
exhaustion.  Suspicion,  however,  was  aroused  as  to  the  entire  sin- 
cerity of  the  patients,  and  one  of  the  hospital  officers,  against  the 
vehement  protestations  of  the  medical  attendants,  threatened  the 
eldest  of  the  two  with  severe  discipline  in  case  she  should  have 
another  fit.  The  attempt  was  successful.  No  fit  was  repeated ; 
and  the  children  confessed  that,  partly  to  excite  sympathy,  partly 
to  obtain  money,  the  disease  had  been  simulated. 

In  connection  with  this,  we  may  observe  the  following  remarks  of 
Dr.  Carter,  in  his  work  on  the  Influence  of  Education  on  Diseases 
of  the  Nervous  System:  — 

'  Compare  Heinrotli,  System  der  psy-  lehre.     Ansgabe   von   Daiiz.     Leipsic, 

chisch  gerichtlichenMedizin.     Leipsic,  1812,  p.  380. 

1825,  p.  453.  3  Friedreich,  Handbuch  der  gericht- 

2  Heinroth,     Medizinische     Zeichen-  lichen  Psychologic,  p.  155. 

361 


§  446.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

"  When  once  a  young  woman  has  discovered  her  power  to  pro- 
duce a  hysteric  paroxysm  at  will,  and  has  exercised  it  for  her  own 
gratification  without  regard  to  the  anxiety  or  annoyance  it  may 
entail  on  her  friends,  a  very  remarkable  effect  is  speedily  produced 
upon  her  whole  mental  and  moral  nature.  The  pleasure  of  receiving 
unwonted  sympathy,  once  tasted,  excites  a  desire  for  it  that  knows 
no  bounds ;  and,  when  the  fits  have  become  familiar  occurrences 
and  cease  to  excite  attention,  their  effect  is  often  heightened  by  the 
designed  imitation  of  some  other  disease."  Then,  in  the  words  of 
Dr.  Carter,  "  pleasure  is  morbidly  associated  with  many  ideas  which 
ordinarily  excite  pain.  The  girl,  though  originally  amiable  and 
disinterested,  derives  a  strange  satisfaction  from  the  sight  of  the 
anxiety,  and  even  the  distress  of  her  friends  ;  and  thus  proverbially 
enjoys  the  idea  of  deceiving  them." 

Another  writer  thus  speaks  :  "  A  person  in  the  shattered  state  of 
mind  that  follows  some  sudden  affliction,  finds  the  sympathy  of 
friends  excited  by  very  demonstrative  grief.  This  in  itself  to  many 
minds  is  a  natural  outlet,  and  then  with  that  strange  selfish  cunning 
which  never  tempts  the  heart  so  fiercely  as  in  such  moments  of 
desolation,  the  paroxysms  of  grief  are  so  timed  as  best  to  attract 
the  attention  and  secure  the  sympathy  of  those  around.  When 
coarse  ordinary  grief  ceases  to  do  this,  new  forms  of  broken-heart- 
edness  are  partly  felt,  partly  feigned.  Food  is  often  refused. 
Sleep  is  rejected.  Very  often  these  conditions,  from  being  partly 
affected,  become  wholly  real.  And  yet,  strangely  enough,  the  suf- 
ferer, when  he  thinks  himself  unobserved,  Avill  desist  from  them. 
He  will  put  on  his  mourner's  air  when  he  knows  he  is  looked  at ; 
but,  when  he  thinks  himself  unobserved,  will  permit  himself  to  be 
diverted.  The  only  cure  in  such  a  case  is  for  those  about  not  to 
pamper  the  hysteria,  if  such  it  be,  by  petting  and  soothing  it,  other- 
wise it  may  become  irradicable." 

3.  Forms  generally  simulated. 
§  446.  The  species  of  mental  unsoundness  most  frequently  imi- 
^  ,.  .  tated  by  the  vulgar  is  delirium — which,  at  the  same  time, 

Delirium  .  .  .  . 

the  form  of    is  that  which  it  is  the  most  difficult  to  sustain.    Sheridan, 

most  usu-      "with  his  usual  tact,  hit  upon  this  when  he  made  the  mock- 

fated^^"^^      author  in  the  Critic  throw  his  heroine  into  precisely  this 

stage : — 

362 


SIMULATED    INSANITY.  [§  447. 

Enter  Tilburina  and  confidant,  mad,  according  to  custom. 

Sneer.  But,  what  the  deuce,  is  the  confidant  to  be  mad,  too  ? 
Puff".  To  be  sure  she  is  ;  the  confidant  is  always  to  do  what  her  mistress 
does  ;  weep  when  she  weeps,  smile  when  she  smiles,  go  mad  when  she  goes 
mad.     Now,  madam  confidant — but  keep  your  madness  in  the   background,  if 
you  please. 

Tilb.     .     .     .     The  wind  whistles — the  moon  rises — see. 
They  have  kill'd  my  squirrel  in  his  cage  ! 
Is  this  a  grasshopper  ? — Ha  !  no  ;  it  is  my 
Whiskerandos  ;  you  shall  not  keep  him — 
I  know  you  have  him  in  your  pocket. 
An  oyster  may  be  crossed  in  love  ! — who  says 
A  whale  's  a  bird  ? — Ha  !  did  you  call,  my  love  ? 
He  's  here  !  he  's  there  !  He  's  everywhere  ! 
Ah  me  !  he  's  nowhere  !  [Exit. 

Puff.  There,  do  you  ever  desire  to  see  any  body  madder  than  that  ? 
Sneer.  Never  while  I  live  ! 

Puff.  You  observed  how  she  mangled  the  metre  ? 

Dang.  Yes — egad,  it  was  the  first  thing  made  me  suspect  she  was  out  of  her 
senses  ? 

Sneer.  And  pray,  what  becomes  of  her  ? 

Puff.   She  is  gone  to  throw  herself  in  the  sea,  to  be  sure  ;  and  that  brings  us 
at  once  to  the  scene  of  action,  and  so  to  my  catastrophe — my  sea-fight,  I  mean. 

§  447.  Yet  it  is  much  more  easy  to  counterfeit  imbecility  in  its 
lower  sta.ges,  as  maction  rather  than  action  is  then  re- 

="     '  Yetimbe- 

quired.  cllity  easier 

"The  feigning  madman  in  all  ages  has  been  apt  to  ^* 
fall  into  the  error  of  believing  that  conduct  utterly  outrageous  and 
absurd  is  the  peculiar  characteristic  of  insanity.  The  absurd  con- 
duct of  the  real  madman  does  not  indicate  a  total  subversion  of  the 
intelligence  ;  it  is  not  utterly  at  variance  with  the  reasoning  pro- 
cesses ;  but  it  is  consistent  either  with  certain  delusive  ideas,  or  with 
a  certain  perverted  state  of  the  emotions.  In  the  great  majority  of 
cases,  feigned  insanity  is  detected  by  the  part  being  overacted  in 
outrageousness  and  absurdity  of  conduct,  and  by  the  neglect  of 
those  changes  in  the  emotions  and  propensities  which  form  the  more 
important  part  of  real  insanity.  Sometimes  mania  is  simulated — • 
the  man  howls,  raves,  distorts  his  features  and  his  postures,  grovels 
on  the  ground,  or  rushes  about  his  room  and  commits  numberless 
acts  of  violence  and  destructiveness.  If  he  has  had  the  opportunity 
of  observing  a  few  cases  of  real  insanity,  and  if  he  is  a  good  mimic, 
he  may  succeed  in  inducing  a  person  who  only  watches  him  for  a 

363 


§  447.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

few  minutes  to  believe  that  he  is  in  the  presence  of  a  case  of  acute 
mania  ;  but  if  the  case  is  watched  for  a  few  hours  or  days,  the  de- 
ception becomes  apparent.  No  muscular  endurance  and  no  tenacity 
of  purpose  Avill  enable  the  sane  man  to  keep  up  the  resemblance  of 
acute  mania ;  nature  soon  becomes  exhausted,  and  the  would-be 
patient  rests,  and  at  length  sleeps.  The  constant  agitation,  accom- 
panied by  symptoms  of  febrile  disturbance,  by  rapid  pulse,  foul 
tongue,  dry'and  harsh  or  pallid,  clammy  skin,  and  long-continued 
sleeplessness  of  acute  mania,  cannot  be  successfully  imitated.  The 
state  of  the  skin  alone  will  frequently  be  enough  to  unmask  the 
pretender.  If  this  is  found  to  be  healthy  in  feeling,  and  sweating 
from  the  exertion  of  voluntary  excitement  and  effort,  it  will  afford 
good  ground  for  suspicion.  If  after  this  the  patient  is  found  to 
sleep  soundly  and  composedly,  there  will  be  little  doubt  that  the 
suspicion  is  correct. 

"  Chronic  mania  may  be  imitated  ;  and  if  this  should  be  done  by 
an  accurate  observer  of  its  phenomena,  who  also  happens  to  be  an 
excellent  mimic,  it  cannot  be  denied  that  the  imitation  may  deceive 
the  most  skilful  alienist.  It  is  remarkable  that  two  of  the  most 
perfect  pictures  of  insanity  presented  to  us  in  the  plays  of  Shak- 
speare  are  instances  of  feigned  madness — namely,  the  madness  of 
Hamlet,  assumed  to  escape  the  machinations  of  his  uncle,  and  that 
of  Edgar,  in  Lear,  assumed  to  escape  the  persecutions  of  his 
brother.  These  inimitable  representations  of  the  phenomena  of 
insanity  are  so  perfect  that  in  their  perusal  we  are  insensibly  led 
to  forget  that  they  are  feigned.  In  both  instances,  however,  the 
deception  was  practised  by  educated  gentlemen ;  and  on  the 
authority  of  the  great  dramatic  psychologist  it  may,  perhaps,  be 
accepted  that  the  phenomena  of  insanity  may  be  feigned  by  a 
skilful  actor  like  Hamlet  so  perfectly  that  no  flaw  can  be  detected 
in  the  representation.  Fortunately  for  the  credit  of  psychologists, 
insanity  is  rarely  feigned  except  by  ignorant  and  vulgar  persons, 
who  are  quite  unable  to  construct  and  to  act  out  a  consistent  system 
of  disordered  mind.  It  must  be  remembered  that  all  the  features 
of  every  case  of  insanity  form  a  consistent  whole,  which  it  requires 
as  much  intelligence  to  conceive  and  to  imitate,  as  it  does  to  con- 
ceive and  to  imitate  any  dramatic  character.  The  idea  which  the 
vulgar  have  of  madness  is  of  quite  a  different  kind.  They  repre- 
sent it  as  a  monster,  half  man,  half  beast ;  the  emotions  they  repre- 
364 


SIMULATED    INSANITY.  [§  449. 

sent  unchanged  and  human,  the  intellectual  functions  they  represent 
entirely  perverted,  grovelling,  and  bestial.  They  think  that  mad- 
ness entirely  alters  the  character  of  a  man's  perceptions  and  utterly 
destroys  his  judgment,  so  that  he  not  only  ploughs  the  shore  and 
sows  salt  for  seed,  but  that  he  cannot  recognize  his  own  son  or 
avoid  the  destruction  of  his  life.  In  more  homely  cases  it  will  be 
found  that  men  feigning  insanity  pretend  that  they  cannot  read  or 
write,  or  count  ten  correctly,  or  tell  the  day  of  the  Aveek,  or  how 
many  children  they  have  ;  they  answer  every  question  wrongly, 
which  a  real  lunatic,  who  could  be  made  to  understand  the  question 
and  to  answer  it  at  will,  would  certainly  answer  right. "^ 

§  448.  The  simulation  of  mania  is  beset  with  peculiar  difficulties, 
arising  from  the  fact  just  mentioned,  that  most  simulants  . 

assume  that  maniacs  reason  illogically  from  logical  pre-    difficult  to 
mises,  instead  of  logically  from  illogical  premises.     But, 
as  a  general  rule,  the  maniac  follows,  in  mental  processes,  the  neces- 
sary laws  of  association.^ 

§  449.  The  simulation  of  entire  oblivion,  as  to  the  res  gestce  of 
guilt,  is  a  common  but  at  the  same  time  a  suspicious 
device  of  experienced  offenders.^  The  risk  of  this  arises  oblivion 
from  the  fact  that  the  conditions  in  which  actual  amnesia  ''•^^^*^'^  • 
intervenes  are  well  known  in  medical  science,  and  their  absence 
betrays  the  simulation.  Thus  the  simulant  is  ready  enough  to 
betray  a  remembrance  of  exculpatory  facts  coincident  in  time  with 
the  condemnatory  facts  which  he  sedulously  forgets ;  and  he  is  apt 
to  fluctuate  in  the  limits  which  he  assigns  to  his  oblivion  even  of 
inculpatory  incidents.  It  is,  as  Dr.  Krafft-Ebing*  pertinently  re- 
marks, peculiarly  suspicious,  when  oblivion  suddenly  protrudes 
itself  after  arrest.  On  the  other  hand,  cases  are  not  rare  where 
persons  of  weak  mind,  shocked  by  a  sudden  accusation  of  guilt  of 
which  they  are  innocent,  have  broken  down  mentally  and  nervously 
under  the  charge,  and  have  become  actually  deranged.  An  unre- 
ported case  may  be  mentioned  as  illustrative  of  this  position.  An 
.American  clergyman  of  respectability  was  charged,  and  on  evidence 

•  Bucknill  on  Diagnosis  of  Insanity,     see  a  learned  essay  by  Dr.  Nieliolsou 

*  See    on    this    Dr.    Krafft-Ebing's     in  the  Journal  of  Mental  Science  for 
Essay   on   Simulation,    in    Friedrich's     Jan.  1870. 

Blatter  for  1871,  p.  163,  and  Combes's        ^  See  supra,  §  410. 

Annal.  Med.-Psy.,   1866,   p.   349,  and        <  Friedreich's  BUitter  for  1871,  p.  168. 

3t)5 


§  451.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

of  much  strength,  with  a  serious  sexual  crime.  He  was  thrown  into 
a  state  of  the  highest  nervous  and  mental  excitement  by  the  charge, 
made  an  incoherent  confession,  and  then  fled  the  country.  It  sub- 
sequently transpired  that  the  charge  was  fabricated  from  beginning 
to  end,  that  the  whole  process  was  one  of  black-mailing,  and  that 
the  fugitive,  whose  mind  was  actually  upset  by  the  charge,  was 
entirely  innocent.  And,  independently  of  the  moral  shock  produced 
by  an  accusation  of  guilt,  imprisonment,  by  itself,  may  produce 
insanity. 

§  450.  The  physiognomy  of  mature  madness  does  not  admit  of 

imitation — though  the  case  is  otherwise  with  imbecility, 
nomy  slid  The  demeanor  of  the  individual  under  threats,  or  even 
examined"^    under  the  application  of  painful  remedies,  is  a  criterion 

of  inferior  value,  because  skilful  impostors  withstand  the 
test,  and  because  many  who  are  really  affected,  particularly  before 
the  disease  has  assumed  a  settled  character,  manifest  fear  and  dread 
of  such  remedies,  and  retain,  in  a  considerable  degree,  sensibility 
to  pain.  The  torpor  of  the  stomach  and  bowels  under  the  use  of 
emetics  and  purgatives  is  equally  unreliable,  because  the  same 
condition  is  found  unconnected  with  unsoundness  of  mind  ;  of  greater 
value  is  sleeplessness,  which  a  deceiver  will  not  long  sustain  after 
the  fashion  of  lunatics.^ 

§  451.  The  shortest  road  to  certainty; ^  is  by  comparing  the  case 

in  hand  with  those  recorded  or  experienced,  and  by  a 
son  of  cases  strict  application  of  the  inductive  tests.  Experience 
tes^t^"'^^^*      teaches  that  the  various  abnormal  conditions  of  the  mind 

have  certain  symptoms  in  common,  by  means  of  which 
they  admit  of  being  arranged  in  greater  or  smaller  subdivisions, 
and  finally  of  being  reduced  to  certain  clearly  defined  forms  and 
combinations  of  forms.  Although  every  case,  to  a  certain  extent, 
furnishes  its  own  rule,  yet  this  logical  process  will  be  of  great  avail 
in  detecting  dissimulation,  on  the  one  hand,  or  groundless  imputa- 
tion of  insanity,  on  the  other.  The  more  the  phenomena  of  a  case 
of  alleged  insanity  subject  to  examination  differ  from  recorded  ob- 
servations, or  the  more  a  person  of  dubious  insanity  presents  an 

'  Schiirmayer,  Gericlit.  Med.  §  533.     clien  Momente  der  Zurechnungsfaehig- 
See  supra,  §  345.  keit,  p.  97. 

*  Ellinger,  Ueber  die  anthropologis- 

366 


SIMULATED   INSANITY.  [§  452. 

array  of  symptoms  at  variance  with  the  form  of  the  disease  to 
■which  they  ought  to  belong,  the  more  reason  is  there  to  guard 
against  deception.^  At  the  same  time,  it  must  be  admitted  that  the 
science  of  psychical  medicine  has  not  attained  such  a  degree  of  per- 
fection, as  to  exclude  entirely  the  possibility  of  cases  arising  which 
would  not  admit  of  being  classed  with  any  of  those  already  observed 
and  noted.  At  times  they  incline  to  mere  moral  perversity,  and 
are  often  treated  as  such  for  years  ;  or  the  disease  itself  is  not  yet 
clearly  developed ;  or,  finally,  it  has  apparently  ceased,  or  arrived 
at  a  stage  in  which  the  patient  is  able  to  control  and  direct  his  con- 
dition, as  a  drunkard  his  intoxication.^ 

4.  Not  proved  hy  sanity  at  trial. 

§  452.  For  the  following  reasons,  simulation  is  not   Reasons  for 
always  to  be  inferred  from  the  absence  of  insanity  at   *  ^^' 
the  time  of  the  investigation  : — ^ 

a.  Patients,  whose  minds  are  unsound  on  one  subject  only,  have 
the  power  of  burying  their  madness  in  their  own  hearts,  to  such  an 
extent  as  to  betray  no  sign  of  derangement  in  the  course  of  the 
examination  ;  because  it  is  not  necessary  that  the  disturbance  of 
one  function  should  impair  the  apparent  action  of  the  others. 
There  are  many  cases,  which  have  been  in  part  noticed,  and  some 
of  which  will  appear  in  the  course  of  the  following  pages,  in  which 
the  sufferer  is  insane  on  one  subject  alone,  while  all  the  other 
operations  of  his  mind  proceed  as  if  unimpaired,  so  that  any  one 
unacquainted  with  the  fixed  idea  which  controls  him  would  pro- 
nounce him  perfectly  rational.^ 

h.  It  is  established  by  experience,  that  lunatics,  even  when  their 
disease  is  not  that  of  monomania,  enjoy  intervals  in  which  their 
understanding  has  not  only  its  normal  vigor,  but  even  displays 
uncommon  powers.^ 

c.  A  genuine  mental  disease  may  be  suspended  or  removed  by 

'  Marc,  Die  Geisteskrankheiteii,  etc.,  nalen  einer  Anstalt  fiir  "Wahnsiniiige, 

vol.  i.  p.  104.  Hanover,  1804,  p.  341.    Esquirol,  Note 

'  Scliiirmayer,  Gericht.  Med.,  §  533.  sur    la    monomanie    homicide,    Paris, 

3  Compare  Friedreich,  p.  165.  1837,  p.  3. 

*  Compare    Wagner,     Beitrage     sur         ^  Muratori,    Ueber   die    Einbildungs 

Philosophischen  Anthropologie,  Vien-  Kraft,    Leipsic,    1785,    vol.    ii.    p.    8. 

na,  1794,  vol.  i.  p.  114.     Perfect,  An-  Keil's  Rapsodien,  p.  7(5. 

367 


§  454.]        MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

the  very  circumstance  •which  gives  rise  to  the  investigation,  in 
analogy  to  the  cases  of  madmen  restored  to  health  by  great  mental 
and  moral  shocks,  as  well  as  of  persons  attempting  suicide  from 
melancholy  or  despair,  who  are  cured  of  their  folly  by  the  impres- 
sions received  while  making  the  attempt.^ 

§  453.    Another  consideration  which  must  never  be  lost  sight  of 

in  investigations  of  the  kind  is  this,  that  a  pretended 
^ganfty^*^  mental  disease  may  turn  into  a  real  one.^  A  man  who 
may  turn       makes  every  effort  to  appear  deranged  may  be  so  much 

affected  by  his  efforts  that  what  he  pretends  may  assume 
a  reality  in  his  mind,  and  he  become  in  fact  insane.^  In  conclusion, 
there  is  also  a  class  of  cases  in  which  genuine  paroxysms  of  ma,d- 
ness  alternate  with  pretended  ones,  which  calls  for  especial  caution 
in  pronouncing  upon  them.* 

5.  Tests. 
\_See  cases,  in  2>d  edition,  §§  834,  885,  and  partieidarly  §  836.] 

§  454.  There  are  persons  of  unsound  mind,  who,  in  the  incipient 

stages  of  the  disease,  retain  sufficient  consciousness  to 

tions  for       endeavor,  for  various  reasons,  to  conceal  their  malady. 

covery'of      ^  Continued  attentive  observation  of  such  individuals 

concealed      ^y^]!   however,  suffice,  in  general,  to  furnish  the  data  for 

insanity.  ' 

a  correct  view  of  the  case.  But  even  m  cases  of  con- 
firmed insanity,  an  occult  condition,  so  called,  may  occur,  in  which 
the  madman  tries  and  manages  to  conceal  his  ailment,  or  rather  his 
impulses,  fancies,  and  feelings.  This  is  particularly  frequent  in 
lucid  intervals  and  in  partial  insanity.^  To  interrogate  the  patient 
directly  to  the  point  is  of  very  little  avail,  for,  if  he  is  anxious  to 
conceal  his  madness,  any  questions  will  inspire  him  with  a  suspicion 

>  Etudes  Medico-Psychologiques  sur  Leipsic,  1852,  p.  397.     And  Pye,  Auf- 

r Alienation    Mentale,   par    L.    F.    E.  saetze,  etc.,  aus  der  gerichtlichen  Arz- 

Renaudin,    chap.    ix.   p.    522.     Paris,  neiwissenschaft,    third  series,   p.  219. 

1854.  And    see   particularly    Schiirmayer,    § 

2  For  an  interesting  essay  on  Mono-  535,  whence  the  above  observations  are 
mania  induced  by  imitation,  see  1  Am.  drawn. 

Journ.  of  Insan.  116.  ^  Friedreich,  Diagnostik,  p.  38  ;  and 

3  Ibid.  172.  his   Handbuch  der  gerichtlichen  Psy- 
*  Compare    Neumann,    Die    Krank-     chologie,  175. 

heiten     des     Vorstellungsvermoegens, 

368 


SIMULATED    INSANITY.  [§  454. 

of  the  questioner  which  must  frustrate  all  such  efforts.  Under  such 
circumstances,  the  following  suggestions  will  be  found  useful : — 

a.  By  bringing  the  patient  into  a  succession  of  different  relations 
of  life,  and  regarding  closely  the  effect  produced  upon  him,  some 
indications  of  his  fixed  ideas  may  be  made  to  escape  him.  If  the 
subject  of  his  lunacy  is  thus  brought  into  question,  by  contradicting 
his  views  in  connection  with  it,  the  perversion  of  his  intellect  will 
be  doubly  apparent. 

h.  It  is,  as  has  been  heretofore  shown,^  important  to  furnish  the 
party  with  pen,  ink,  and  paper,  and  induce  him,  under  some  pretext 
or  other,  to  write  ;  he  will  not  be  able  to  refrain  from  setting  down 
something  which  will  throw  more  or  less  light  on  the  nature  of  his 
derangement. 

c.  Heindorf  proposes  that  the  physician  should  narrate  the 
patient's  own  history,  or  so  much  of  it  as  he  had  learned  or  could 
surmise,  to  the  patient,  as  the  history  of  the  physician;  this  is  to 
enlist  the  confidence  of  the  patient  and  make  him  suppose  a  parallel 
between  his  own  case  and  that  of  the  examiner,  so  that  the  dulce 
habere  soeium  malorum  may  elicit  circumstances  which  he  would 
otherwise  have  concealed. 

d.  A  similar  proposal  is  to  associate  the  individual  with  another, 
of  equal  rank,  degree  of  education,  social  position,  etc.,  with  him- 
self, as  a  confidant,  as  persons  of  this  description  generally  display 
more  frankness  towards  people  of  their  own  order,  than  towards 
those  whom  they  regard  as  above  them.  This  idea,  however,  it 
will  be  easily  seen,  is  very  difficult  of  practical  application. 

The  tests  which  may  be  applied  at  a  medico-legal  examination 
have  been  noticed  under  a  previous  head.^ 

Though  patients  of  this  kind  may  conceal,  they  can  never  deny 
their  fixed  ideas.  Many  persons,  says  Heinroth,  who,  in  a  healthy 
state,  had  no  scruples  in  telling  a  large  series  of  falsehoods,  when- 
ever their  interest  required  it  or  a  confession  of  the  truth  would 
subject  them  to  a  disagreeable  exposure,  forget  all  this  the  moment 
they  have  a  fixed  idea  to  maintain.  Then  they  overlook  every  ad- 
vantage, and  stand  at  no  absurdity  and  no  disgrace.  To  hold  fast 
the  fancy  which  enchains  them,  is  their  only  aim.  If  the  physician 
can  discover  this  fancy,  he  has  but  to  ply  the  party  with  questions 

1  Supra,  §  386.  2  Supra,  §§  345-382. 

VOL.  I.— 24  369 


§  457.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

in  reference  to  it,  to  make  him  betray  himself,  and  in  many  cases 
disclose  more  than  the  inquirer  had  ever  thought  of  investigating. 

§  455.  Artificial  instrumentalities,  though  sometimes  of  doubt- 
Artificial  ^^  propriety,  have  been  not  infrequently  used  to  test 
tests  some-  simulation.  The  consequence  may  be  at  least  to  relieve 
times  used.  .  />    n      ,  mi         -tn      oi     i        • 

the  question  oi  doubt,      ihus  Dr.  fetoltz,  m  an  essay  in 

the  Wiener  Med.  Wochenschrift  for  1870,  mentions  an  instance 
where  chloroform  was  employed  in  such  a  way  as  to  show  that  the 
plea  of  irresponsibility  was  well-founded.  The  patient  purported 
to  be  deaf  and  dumb,  and  he  was  narcotized,  with  the  expectation 
that,  if  he  was  really  capable  of  speech,  this  capacity  would  exhibit 
itself,  either  when  he  was  in  the  condition  of  trance,  or  in  the  pro- 
cess of  recovery  of  consciousness.  He  was  placed  under  the  influ- 
ence not  only  of  alcohol,  but  of  chloroform,  without  an  articulate 
sound  being  produced.  The  conclusion  was  that  his  disease  was 
not  feigned.  In  cases  of  simulated  insanity,  Dr.  Stoltz  is  strongly 
of  opinion  that  chloroform  and  ether  may  be  successfully  used  as 
detectives.  Dr.  Nicholson,  in  the  Jouriial  of  Mental  Science  for 
January,  1870,  expresses  the  same  opinion  as  to  the  use  of  electri- 
city ;  though  as  a  general  rule,  he  considers  the  use  of  artificial 
agencies  in  such  cases  as  objectionable  on  moral  and  humane 
grounds.^ 

§  456.  Periodicity  is  a  necessary  condition,  as  has  been  seen, 
of  certain  phases  of  insanity,  and  Avhen  this  periodicity 
city  a  test      fails,  when,  in  other  words,  the  symptoms  which  should 
a  condi-        ^^  periodical  and  intermittent  are  exhibited  in  uninter- 
^^nit^'^  ^^'     naitting  constancy,  then  there  is  serious  ground  for  sus- 
picion. 
§  457.   By  counsel  who  are   charged  with   examining   alleged 
lunatics,  the  following  points  may  be  kept  in  mind : — 

a.  Silence  or  evasion  of  questions,  on  the  plea  of  weakness  of 
memory,  or  confusion  of  thought,  is  always  suspicious. 
evasion  of  It  is,  as  is  well  known,  and  as  was  conspicuously  illus- 
?uspSuT  ^^rated  in  the  case  of  the  Italian  witnesses  produced  to 
criminate  Queen  Caroline,  the  usual  resort  of  a  witness 
who  fabricates  a  case,  and  who  has  skill  enough  to  know  that  full 
and  free  replies  will  involve  him  in  contradictions.     To  the  idiot,  it 

'  See  appendix  No.  ix.  3d  ed.  of  this  work. 

370 


SIMULATED   INSANITY.  [§  459. 

is  true,  or  the  maniac  whose  phase  is  silence,  silence  is  natural ; 
but  cases  such  as  these  are  capable  of  abundant  proof  aliunde.  The 
imbecile,  however,  and  the  person  laboring  under  the  ordinary 
phases  of  amentia,  is  talkative  enough,  and  answers  where  he  can, 
■whether  coherently  or  incoherently.  Suspicion  should  be  pecu- 
liarly aroused  when  the  examinant,  on  the  plea  of  weakness  of 
mind,  avoids  answering,  not  merely  those  questions  concerning 
"which  such  weakness  might  naturally  be  pleaded,  but  those  which 
concern  facts  which  must  be  indelibly  imposed  on  the  memory,  such 
as  parents,  place  of  education,  prominent  places  of  abode.  The 
tendency  of  true  imbeciles  to  vague  and  rambling  conversation  is 
unmistakable.  Their  attention  is  not  to  be  fixed  on  the  examiner  ; 
their  eyes  wander  around  the  room,  and,  if  they  see  a  relative  or 
friend,  they  look  to  such  dependently  to  help  them  to  a  reply  ;  they 
often  repeat  feebly  to  themselves  the  question,  as  if  to  lead  them  in 
their  reply. 

b.  §  458.   The  allegation  of  "  delusion,"  or  "  hallucination"  is 
one  which  the  real  lunatic  rarely  advances.     Just  be- 

.  p        •        1       .     1        1  IP    Real  luna- 

cause  he  believes  m  these  fancies,  he  is  loath  to  speak  of  tics  rarely 
them  when  under  examination,  because  he  is  loath  to  edge  deiu- 
have  them  the  subjects  of  criticism.  The  difficulty,  in-  ^^*^^®- 
deed,  of  extracting  from  the  real  lunatic  a  confession  of  such  be- 
liefs, is  well  known ;  sometimes  the  most  experienced  examiner  is 
bajffled  for  hours,  and  the  secret  is  at  last  only  elicited  by  a  surprise.' 
On  the  other  hand,  simulants  are  apt  to  push  such  alleged  delu- 
sion, especially  that  of  "  persecution,"  prominently  forward,  for- 
getting that  for  a  person  to  declare  that  he  suffers  under  a  delusion 
that  he  is  persecuted,  is  to  admit  that  he  knows  that  he  is  not  per- 
secuted at  all. 2 

€.  §  459.  Most  difficult  is  it  for  the  simulant  to  play  consistently 
for  any  length  of  time  his  feigned  part.  He  has,  in  the 
first  place,  to  select  intelligently  some  one  particular  simulation 
phase  of  insanity,  for  such  phases  are  several,  with  very  po™g°bie™" 
distinct  characteristics.  He  must  then,  when  he  writes, 
or  when  he  speaks,  in  the  court  room,  and  in  his  chamber  when  he 
believes  himself  unobserved,  in  periods  of  lassitude  as  well  as  in 
periods  of  excitement,  preserve  these  characteristics.     In  this  even 

I  See  supra,  §  378.  ^  See  supra,  §  385. 

371 


§  460.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

the  most  consummate  actors  would  fail ;  and  simulants  of  insanity 
are  not  often  consummate  actors.  They  generally  seize  upon  de- 
lirium, and  in  this,  if  they  are  long  watched,  they  are  betrayed  by 
their  over-acting  when  they  think  themselves  watched,  and  their 
repose  when  watching  appears  to  them  to  have  ceased.  The  real 
maniac,  also,  is  laboring  under  a  nervous  excitement  which  makes 
him  sleepless,  and  invests  him  with  singular  and  persistent  muscular 
vehemence.  The  simulant  has  no  such  abnormal  frenzies  ;  he  must 
sleep  and  rest,  as  a  recruiting  process  for  his  very  simulation. 
This,  however,  is  but  a  single  type.  The  simulant  may  select  some 
other ;  often  some  of  which  he  may  have  had  opportunity  of  per- 
sonal observation.  But  in  the  long  run  similar  discrepancies  will 
be  betrayed.  And  again,  there  are  some  signs  which  it  is  very 
difficult  to  imitate.  Muscular  twitching ;  vague  simpering  and  self- 
talking  both  when  alone  and  in  company ;  the  eye,  whether  lack- 
lustre or  wild ;  these  no  mimic  can  persistently  feign. 

d.  §  460.  Yet  it  must  not  be  forgotten  that  simulation  does  not 

exclude   insanity.     Epileptics,  and   persons   subject   to 

lation^^'es   hysteria,  are  apt  to  exaggerate  some  symptoms,  and  sim- 

not exclude   yjate  others.     But  this  kind  of  simulation  confines  itself 

insanity. 

to  those  symptoms  which  are  likely  to  attract  sympathy, 

such   as   delusions   and  nervous   or  physical   disease.      Simulated 

mania  or  idiocy  rarely  is  attempted  except  by  the  responsible  or 

sane. 

372 


AS    CONNECTED   WITH    PHYSICAL   DISORDERS. 


CHAPTER  IV. 


MENTAL  UNSOUNDNESS  AS  CONNECTED  WITH  PHYSICAL 

DISORDERS. 


I.    As  CONNECTED  WITH  DERANGEMENT  OF 

THE  Senses,  and  Disease. 
1.  Deaf  and  dumb. 
(a)   Psychologically. 

Responsibility  of  deaf-mutes  condi- 
tioned on  education,  §  461. 

Test  of  capacity,  §  462. 

Capable  of  instruction,  §  463. 
(6)   Legally. 

Prima  facie  capable  of  business  and 
responsible,  §  464. 

Illustrations,  §  466-468. 

2.  Blind. 
Blindness  does  not  affect  responsibility, 
§469. 

3.  Epileptics. 

Peculiar  tendency  of  epilepsy  to  insan- 
ity, §  470. 

Nature  of  epilepsy,  §  471. 

Distinction  between  the  several  classes, 
§472. 

Existence  of  obscure  epilepsy,  §  473. 

Different  stages  of  the  disease,  §  474. 

Epilepsy  not  affecting  responsibility, 
§475. 

Rule  as  to  intermediate  stages,  §  476. 

Tests  laid  down  by  Ciarus,  §  477. 

Different  conditions  of  intermediate 
stages,  §  478. 

Dr.  Maudsley  on  moral  effects  of  epi- 
lepsy, §  480. 

Murder  during  epileptic  attack — Law- 
ton's  case,  §  481. 


II.     As  CONNECTED  WITH  SlEEP. 

Division  of  this  subject,  §  482. 
General  effect  of  sleep  on  the  senses, 
§483. 

1.  Somnolentia,  or  sleep-drunlcenness. 

Somnolentia  defined,  §  484. 

Cases  of  irresponsibility  produced  by 
sleep-drunkenness,  §  485. 

Somnolentia  distinct  from  somnambu- 
lism, §  487. 

Necessary  tests  to  determine  responsi- 
bility, §  488. 

Observations  of  Dr.  Kriigelstein,  §  489. 

Cases  given  by  Dr.  Taylor,  §  490. 

Somnolentia  as  a  defence  may  be  un- 
duly strained,  §  491. 

2.  Somnambulism. 

Conditions  of  somnambulism,  §  492. 

Somnambulism  a  species  of  delirium, 
§493. 

Instances  of  somnambulism  producing 
unconsciousness  and  irresponsibility, 
§494. 

Dr.  Abercombie's  views  on  subject — 
somnambulist  not  resiaonsible  for  his 
acts,  §  496. 

Instances  of  somnambulism,  §  498. 

Causing  involuntary  homicide,  §  499, 

Opinion  of  Sir  W.  Hamilton  that  con- 
sciousness is  present  in  somnambu- 
lism, §  500. 

Statement  of  Prof.  lessen,  §  501. 

373 


§  461.]       MEXTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 


III.    As  AFFECTING  THE  TEMPEEAiIE^"T. 

1.  Depression. 

Depression  often   a  transition  stage  to 

insanity,  §  502. 
Views  of  Morel  on  depression,  §  503. 
Of  Eeid,  §  505. 
Depression  often  intermittent,  §  506. 

2.  Hypochoiidria. 

Hypochondria  the  state  of  total  depres- 
sion, §  508. 

Description  of  lirpoclaondria,  §  509. 

Hypochondria  does  not  destroy  respon- 
sibility nnless  complicated  and  aggra- 
vated, §  511. 

Is  often  complicated  with  other  diseases 
diminishing  responsibility,  §  512. 

Distress  of  body  may  relieve  distress  of 
mind,  §  513. 

Hypochondria  may  be  controlled  by 
the  will,  §  514. 

Or  dispelled,  §  515. 


3.   Hysteria. 

Hysteria  mnch  like  epilepsy,  §  517. 

Symptoms  of  hysteria,  §  518. 

Hysteria  may  produce  delusions  affect- 
ing responsibility,  §  520. 

But  attacks  of  hysteria  rarely  esclude 
responsibility,  §  521. 

Dr.  Maudsley's  description  of  hysteria, 
§  522. 

4.   Melancholia. 

Melancholia  is  settled  and  continuous 
depression,  §  523. 

Characteristics  of  melancholia,  §  524. 

It  is  often  due  to  sexual  causes,  §  525. 

May  produce  mental  confusion  and  loss 
of  self-control,  §  526. 

And    development    of     abnormal    im- 
pulses, §  527. 

Or  conscious  acts  induced  by  halluci- 
nations or  delusions,  §  528. 

Homicide  or  suicide  under  influence  of 
depression,  §  529. 

Generally  preceded  by  a  state  of  calm, 
§  530. 


I.    AS  CONNECTED  WITH  DERANGEMENT  OF  THE  SENSES,  AND  DISEASE. 

1.  Deaf  and  dumb. '^ 

(a)  Psyclwlogically. 

§  461.  The  dmf  and  dumb,  where  their  infirmity  is  congenital, 
or  contracted  in  early  infancy,  are  always  in  an  abnor- 
mal mental  and  moral  condition,  o^ing  to  the  absence  of 
hearing  and  speech,  the  two  main  faculties  for  culture. ^ 
For  this  reason,  only  the  permanently  and  absolutely 
deaf  and  dumb  come  now  under  consideration,  and  in 
such  cases  the  point  of  inquiry  will  be  the  degree  of  development  of 
the  mental  and  moral  powers,  that  is  to  say,  of  the  power  of  under- 
standing the  consequences  and  the  wrongfulness  of  the  act  com- 


Responsi- 
bility  of 
deaf-mutes 
condi- 
tioned on 
education. 


1  See  an  interesting  treatise  on  this 
point,  8  Am.  Journ.  of  Ins.  17.  L. 
Krahmer,  Handbuch  der  Gericht.  Med. 
Halle,  C.  A.  Scliwetschke,  1851,  §  122. 
A  valuable  essay  by  Dr.   E.   Peet  on 

374 


Deaf-mutes  will  be  found  in  the  Pro- 
ceedings of  the  N.  Y.  Med.  Leg.  Soc. 
(N.  Y.  1872)  pp.  516-545. 

2  Friedreich,  Handbuch  der  Gericht- 
lichen  Psychologie,  p.  659. 


DEAF    AND    DUMB.  [§  462. 

mitted.  What  will  always  exert  great  influence  is  the  question 
whether  the  deaf  and  dumb  person  has  received  any,  and  what 
instruction ;  where  no  instruction  has  been  efficient,  there  is  always 
great  reason  to  conclude  that  the  psj'chological  conditions  are  want- 
ing upon  which  moral  responsibility  depends.^  The  most  difficult 
part  of  the  task  is  always  the  examination  of  the  individual,  which, 
to  lead  to  a  reliable  result,  requires  the  assistance  of  an  adept — 
that  is  to  say,  a  teacher  of  the  deaf  and  dumb.  In  pronouncing 
upon  such  cases,  it  must  not  be  forgotten  that  the  permanently  and 
absolutely  deaf  and  dumb  have  a  peculiarly  irascible  disposition, 
and  that  many  of  them,  especially  those  whose  features  are  marked 
by  froward,  morose,  gloomy,  and  sinister  expression,  and  more  or 
less  resemble  those  of  the  cretins,  are  born  with  a  tendency  to 
deceit,  malice,  cunning,  duplicity,  and  cruelty.^ 

§  462.  In  regard  to  the  form  and  manner  in  which  the  intellectual 
condition  of  the  deaf  and  dumb  should  be  examined  and  Tests  of 
probed,  Hoffbauer  and,  after  him,  Freidreich  have  given  ^'^P^city. 
^  series  of  directions  substantially  as  follows :  Where  the  deaf  and 
dumb  person  is  able  to  understand  spoken  words  by  following  the 
motions  of  the  lips,  the  inquirer  must  speak  distinctly  and  with 
marked  articulation,  so  as  to  enable  the  patient  to  see  what  he  says. 
Where  oral  examinations  are  impracticable  or  unsatisfactory,  the 
scrutiny,  if  possible,  must  be  made  in  writing,  when  it  becomes 
especially  important  to  propound  simple  questions,  intelligible  to 
every  one.  But  they  must  not  be  such  merely  as  the  patient  is 
likely  to  expect  beforehand,  for  these  might  be  answered  promptly 
and  correctly ;  not,  however,  because  he  has  properly  examined 
into  and  understood  their  meaning,  and  properly  concentrated  in 
his  own  thoughts  the  answer  he  returns,  but  because  he  considers 
the  question  as  written  down,  without  thinking  further  about  it,  as 
a  request  to  commit  to  paper  that  which  may  be  a  mere  mechanical 
form.  And  yet  so  long  as  these  answers  are  correct,  or,  if  not 
correct,  at  least  congruous,  there  is  room  to  believe  that  the  ques- 
tions were  understood  by  the  patient,  and  that  he  is  able,  to  a  cer- 

'  See   J.  Briand,  Med.  Leg.,  article  Paris,  1848.    Also,  Trait6  des  maladies 

sur    la    surdi-mutite,    p.    569,    Paris,  de  I'oreille  et  de  I'audition,  par  Itard, 

1852.     See   also   M.  Orfila,  Med.  Leg.  vol.  xi. 

sur  la  surdi-mutite,  tome   i.   p.  460,  *  Schiirmayer,  Gericht.  Med.,  §  562. 

375 


§  463.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

tain  extent,  to  make  himself  intelligible  to  others  by  means  of 
■writing.     But  the  contrary  does  not  appear  if  his  answers  are 
incongruous.     But  if  several  answers  are  incongruous,  and  particu- 
larly if  it  is  found  that  a  certain  number  of  answers  are  constantly 
repeated,  no  doubt  remains  that  the  individual,  however  capable  of 
tracing  written  characters,  is  not  able,  in  the  proper  sense  of  the 
word,  either  to  read  or  write.     Where  it  is  necessary  to  converse 
with  the  deaf  and  dumb  person  by  means  of  signs,  and  for  this  pur 
pose  to  call  in  the  assistance  of  an  expert,  the  capacity  of  the  latter 
must  be  so  far  taken  into  account  as  to  obtain  the  assurance  that  he 
will  speak  and  interpret  according  to  the  intention  of  the  judicial 
purpose  had  in  view  ;  for  which  reason  it  will  be  important  to  instruct 
the  interpreter  fully  on  this  subject.     It  may  also  be  necessary, 
and  is  declared  indispensable  by  some,^  to  employ  two  interpreters 
at  the  hearing.     Itard  is  of  opinion  that  the  intellectual  capacity  of 
a  deaf  and  dumb  person  should  be  tested  by  a  written  colloquy, 
and  that,  if  incapable  of  taking  part  in  such  communications,  he  is 
to  be  looked  upon  as  lacking  the  necessary  instruction,  and  idiotic. 
The  same  high  authority  further  remarks  that,  if  a  deaf  and  dumb 
man  denies  having  received  any  instruction,  in  the  hope  of  escaping 
punishment  on  the  score  of  ignorance,  the  proper  course  is  to  accuse 
him  of  a  graver  crime,  and  one  of  another  character  from  that 
imputed  to  him,^  and  that,  on  the  whole,  a  deaf  and  dumb  man  who 
■understands  the  questions  asked  of  him  in  writing  is  much  the  same 
as  a  man  entirely  compos  mentis.     Marc  says  that,  when  the  re- 
sponsibility of  a  deaf  and  dumb  person  who  has  been  taught  to  con- 
verse is  in  question,  a  hearing  should  be  had,  without  any  judicial 
preparation,  under  the  form  of  a  conversation  on  general  subjects 
entirely  foreign  to  the  offence  committed,  from  which,  by  an  asso- 
ciation of  ideas,  a  transition  should  be  effected  to  general  questions 
of  morals  and  social  order. 

§  463.  "  There  is  but  little  difference,"  says  Orfila,  "  between 
Capable  of  ^"^^  uninstructed  deaf  and  dumb  and  the  idiot,  and  such 
instruction,  jg  ^j^g  affinity  existing  between  these  two  conditions  of 
the  intelligence,  that  more  than  the  fortieth  part  of  the  deaf  and 

'  Kleinsclirod.  in  order  to  justify  himself,   and  ■will 

2  If  he  kno-ws  how  to  -write,  he  ■will  thus  show  the  -whole  range  of  his  in- 
have  immediate  recourse  to  this  method    telligence. 

3i6 


DEAF    AND   DUMB.  [§  464. 

dumb  are  afflicted  with  idiocy.  It  may  be  that  this  mental  incapa- 
city is  the  result  of  inaudition,  or  it  may  depend  upon  the  same 
cause  that  paralyzed  the  auditive  sense.  It  should  be  observed, 
however,  that  the  idiot  is  incapable  of  learning,  whilst  the  deaf  and 
dumb,  on  the  contrary,  can  receive  an  almost  complete  education. 
Even  if  the  uninstructed  deaf  and  dumb  do  not  know  all  the  conse- 
quences of  certain  criminal  actions,  still  they  are  not  slow  in  learn- 
ing that  these  actions  are  censurable,  and  even  that  they  are  the 
subject  of  punishment."^  But,  though  a  party  seeking  to  charge 
an  uneducated  deaf-mute  has  the  burden  on  him  of  proving  some 
degree  of  intelligence  on  the  part  of  the  defendant,  yet,  when  this 
is  shown,  the  defendant  can  no  longer  plead  his  disability  as  a  bar. 

(&)  Legally. 
§  464.  In  addition  to  the  former  remarks  on  this  point,^  it  may 

now  be  stated:—  ^  Prima  facie 

a.  The  deaf  and  dumb  can  exercise  control  over  prop-    capable  of 

business 

erty.  In  1754,  a  woman  born  deaf  and  dumb,  upon  andrespon- 
arriving  at  the  age  of  twenty-one  years,  applied  to  the 
English  court  of  chancery  for  the  possession  of  her  real  estate,  and 
for  the  enjoyment  of  her  personal  estate  (it  is  presumed  that  she 
had  been  previously  under  the  control  of  a  guardian).  Upon  her 
appearing  before  the  chancellor.  Lord  Hardwicke,  he  put  questions 
to  her  in  writing,  and,  receiving  suitable  written  answers,  her  appli- 
cation was  granted. 

h.  They  can  take  by  descent,  a  point  which  we  believe  has  never 
been  disputed. 

c.  When  otherwise  of  disposing  capacity,  they  can  make  a  valid 
will. 

d.  Even  though  uneducated,  if  capable  of  intelligently  bargaining 
(though  it  seems  the  burden  of  proving  this  is  on  the  party  seeking 
to  charge  them),  they  may  make  a  valid  contract,  or  convey  real 
and  personal  estate.^ 

e.  If  coynpos  mentis  they  can  contract  matrimony.'* 

>  Med.  Leg.,  tome  i.  p.  460.  Paris,  *  Swinburne  on  Spousals,  cited  13 
1848.  Am.  Journ.  Ins.  127. 

2  Supra,  §  95. 
8  See  supra,  §§  95-98. 

377 


§  464.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

/.  They  can  be  examined  as  witnesses  in  courts  of  justice  ;  and 
for  this  purpose  it  is  proper  that  their  testimony  should  be  inter- 
preted through  media  which  they  best  understand.^ 

g.  They  are  legally  responsible  for  ci'imes  in  the  same  way  as 
other  persons,  though,  in  determining  the  question  of  sanity,  their 
disability,  when  not  removed  by  education,  should  throw  on  the 
prosecution  the  burden  of  proving  them  to  have  some  degree  of  in- 
telligence.^ 

"  The  favor  of  courts  and  jurists  may  also  be  justly  invoked  for 
a  deaf  person  in  cases  where  he  has  acted  under  erroneous  impres- 
sions natural  to  one  in  his  circumstances.  Deaf-mutes,  and  deaf 
persons  who  are  not  quite  dumb,  are  often  suspicious  and  irritable, 
from  their  inability  to  hear  and  take  part  in  what  is  going  on  around 
them.  They  sometimes  take  as  intentional  annoyance  and  insult 
gestures  of  practical  jests,  unskilfully  made,  which  were  merely  in- 
tended as  friendly  pleasantry.  Piroux  records  the  case  of  Jean- 
Baptist  Villemin,  a  deaf-mute  of  twenty -nine  years,  very  imper- 
fectly educated,  and  of  feeble  capacity.  Placed  by  the  wealth  of 
his  family  above  the  necessity  of  manual  labor,  and  incapable  of 
intellectual  labor,  he  fell  into  dissolute  habits,  wandering  idly  about 
the  fields  and  frequenting  public  houses.  One  night,  in  a  tavern, 
he  met  a  man  named  Marchand,  who  attempted  to  amuse  himself 
and  the  company  by  making  signs  to  the  deaf-mute  which  the  latter 
did  not  understand.  Villemin  indicated  by  a  gesture  that  he  de- 
sired to  be  let  alone  ;  but  Marchand  continued  to  annoy  him,  seizing 
his  head,  making  a  bite  at  his  nose,  and  brandishing  round  his  head 
a  cane,  which  he  then  held  in  the  attitude  of  firing  a  gun,  saying  to 
the  company  that  he  Avished  to  invite  Villemin  to  go  a  hunting. 
Villemin  naturally  lost  his  patience  ;  unable  to  understand  what 
was  meant  by  Marchand,  or  to  express  his  own  sentiments,  except 
by  actions,  he  seized  the  aggressor,  flung  him  on  the  floor,  and  gave 
him  a  kick  on  the  head.  Marchand  w^as  only  slightly  hurt.  The 
company  declared,  and  he  admitted,  that  he  was  himself  to  blame ; 
and  he  said  he  harbored  no  ill-will  to  Villemin  for  what  had  passed. 
Returning  home,  a  distance  of  several  leagues,  on  foot,  he  fell  sick 
and  died  of  a  disease  of  the  chest,  which  his  family  chose  to  ascribe 

«  Wh.  Cr.  Ev.  §  375  ;  13  Am.  Journ.         2  See  supra,  §§  95-98. 
Ins.  155, 

378 


DEAF   AND   DUMB.  [^  466. 

to  the  blows  which  he  had  received  from  Villemin — which,  however, 
was  disproved  by  the  medical  witnesses.  The  deaf-mute  was,  in 
the  first  instance,  sentenced  to  two  months'  imprisonment ;  but,  on 
an  appeal  to  the  Cour  Royale  of  Nancy,  in  consideration  of  the  un- 
fortunate condition  of  Villemin,  and  of  the  brutal  and  inconsiderate 
conduct  of  Marchand,  the  term  was  reduced  to  six  days.^ 

§  465.  "  Other  cases  may  easily  be  supposed  in  which  a  deaf 
person  may  be  led  to  violent  conduct  by  his  inability  to  hear,  and 
to  understand  what  is  meant  by  others.  An  impatient  man,  for  in- 
stance, requests  a  deaf-mute  to  get  out  of  his  way,  and,  not  know- 
ing that  the  latter  could  not  hear  his  request,  attempts  to  shove  him 
aside,  thus  provoking  a  manual  retort.  A  deaf-mute  may  also 
erroneously  conceive  himself  wronged  in  making  change,  or  in  price, 
weight,  or  measure,  and  break  out  into  violence.  In  such  cases, 
we  are  confident,  there  are  very  few  who  would  undertake  a  prose- 
cution for  violence  by  a  deaf-mute,  after  becoming  aware  of  his 
peculiar  condition 

§  466.  "  At  Cologne,  on  the  14th  and  15th  of  August,  1829,  the 
royal  court  of  assizes  was  occupied  by  an  accusation  mustra- 
against  a  deaf  and  dumb  journeyman  shoemaker,  Johann  tious. 
Schmit,  of  Kreuznach,  who,  enraged  at  being  upbraided  for  the 
defects  of  his  work,  had  stabbed  his  master  with  a  knife.  The 
principal  question  discussed  was  whether  the  early  instruction  and 
moral  and  intellectual  state  of  the  deaf-mute  made  for  or  against 
his  accountability.  The  jury  found  that  the  unfortunate  murderer 
was  not  accountable;  and  he  was,  therefore,  acquitted  of  the  charge, 
and  dismissed  free  into  the  street.  This  (adds  the  editor  of  the 
Hamburg  Report),  it  is  to  be  hoped,  was  not  without  that  solicitude 
that  might  secure  a  better  education  to  the  unfortunate  man,  then 
twenty-three  years  old,  and  sufficient  precautions  lest  he  should 
become  possessed  with  the  idea  that  he  could  do  such  acts  with 
impunity." 

"•  A  much  more  aggravated  case  than  the  foregoing  was  that  of 
Michael  Boyer,  an  uneducated  and  vagabond  deaf-mute,  of  about 
twenty-seven  or  twenty-eight  years,  who  was  brought  before  the 
court  of  assizes  of  Cantal  (France),  under  the  triple  charge  of  rape, 
murder,  and  robbery,  committed  on  a  girl  of  eleven  years,  whom  he 

'  Piroux's  Journal,  i.  46,  59. 

379 


§  467.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

met  in  a  lonely  place  on  Christmas  day,  1843,  on  her  way  to  the 
residence  of  an  aunt  in  a  distant  village,  with  whom  she  was  to 
spend  the  winter  in  order  to  attend  school.  Boyer  was  proved  to 
have  pursued  other  females  with  evident  intentions  of  violence,  and 
had  been,  some  years  before,  condemned  to  three  years'  imprison- 
ment for  theft.  The  evidence,  though  circumstantial,  was  con- 
clusive. It  is  not  to  our  purpose  to  detail  it.  We  observe,  however, 
that  the  prisoner,  being  interrogated  through  M.  Riviere,  director 
of  the  school  for  the  deaf  and  dumb  at  Rodey,  denied,  energeti- 
cally, the  principal  facts  imputed  to  him,  and  succeeded  in  making 
it  understood  that  he  maintained  that  the  blood  observed  on  his 
garments  came  from  a  wound  in  the  head,  occasioned  by  a  fall 
while  in  liquor.  What  plea  was  by  his  counsel  set  up  in  defence 
we  are  not  informed.  The  jury  found  him  guilty  of  the  triple 
charge,  but  admitted  extenuating  circumstances — a  verdict  the  effect 
of  which  was  to  save  the  prisoner's  life.  He  was  condemned  to 
hard  labor  for  life,  and  to  the  exposition  puhlique  (pillory,  or 
stocks).^  It  should  be  observed  that  the  only  extenuating  circum- 
stances that  appear  in  the  narrative  of  this  fearful  crime  were  the 
total  deprivation  of  instruction,  and  neglected,  vagabond  state  of  the 

criminal 

§  467.  "Another  deplorable  instance  of  the  ungovernable  pas- 
sions of  too  many  uneducated  mutes  is  furnished  by  the  case  of 
Pierre  Lafond,  who  having  been  repeatedly  detected  in  thefts  of 
the  property  of  his  uncle  and  aunt,  by  whom  he  had  been  adopted 
and  brought  up,  his  aunt  was  at  length  provoked  to  the  degree  of 
following  and  reproaching  him  in  the  presence  of  a  young  neighbor, 
of  whom  Lafond  was  enamored.  Watching  an  opportunity  to  exe- 
cute the  vengeance  that  rankled  in  his  heart,  he  availed  himself  of 
the  absence  of  his  uncle  to  attack  his  aunt  at  night,  in  her  bed, 
with  several  of  the  shoe-knives  used  by  him  in  his  trade.  Her 
daughters,  coming  to  her  assistance,  were  also  grievously  wounded, 
but,  providentially,  none  of  the  victims  were  mortally  touched. 
Taken,  a  day  or  two  afterwards,  wandering  in  the  fields,  Lafond 
alleged,  by  the  aid  of  an  interpreter  conversant  with  his  signs,  that 
he  committed  the  act  under  the  influence  of  a  sudden  friorht  and 
hallucination.     However,  neither  this  adroit  defence  nor  his  unfor- 

'  Morel's  Annales,  ii.  166-170. 
380 


DEAF    AND    DUMB.  [§  468. 

tunate  position  could  make  the  jury  forget  the  aggravating  circum- 
stances of  the  case.  He  was  found  guilty,  and  condemned  to  ten 
years  at  hard  labor .^ 

"  In  the  several  French  cases  that  have  been  cited  (and  we 
might  have  cited  other  similar  cases  from  Bebian's,  Piroux's,  and 
Morel's  Journals),  no  difficulty  appears  to  have  been  experienced 
in  relation  to  the  formalities  of  a  trial ;  the  questions  that  were 
raised  related  to  the  degree  of  moral  accountability  of  the  deaf  and 
dumb.  But  the  few  English  and  Scotch  cases  we  have  are  mostly 
of  a  different  character.  In  these  cases  the  defence  set  up  for 
deaf-mutes  accused  of  crime  has  generally  turned  on  legal  forms 
and  technicalities.  As  this  paper  has  already  extended  to  an  unex- 
pected length,  and  as  the  cases  to  which  we  refer  can  be  consulted 
at  large  in  standard  works,  we  shall  restrict  ourselves  to  brief  out- 
lines. 

§  468.  "  In  July,  1817,^  Jean  Campbell,  an  uneducated  deaf  and 
dumb  woman,  the  mother  of  three  children  by  three  different  fathers, 
was  charged  before  the  court  of  justiciary,  in  Edinburgh,  with  mur- 
dering her  child  by  throwing  it  over  the  old  bridge  at  Glasgow. 
Mr.  Robert  Kinniburgh,  an  eminent  teacher  of  the  deaf  and  dumb, 
was  called  as  an  expert.  He  understood,  from  her  signs,  tliat  she 
maintained  that,  having  the  child  at  her  back,  held  up  by  her  cloak, 
which  she  held  across  her  breast  with  her  hands,  and  being  partially 
intoxicated,  she  had  loosened  her  hold  to  see  to  the  safety  of  some 
money  in  her  bosom,  thus  allowing  the  child  to  fall  over  the  parapet 
of  the  bridge,  against  which  she  was  resting.  She  indignantly  de- 
nied having  intended  to  throw  it  in  the  river. 

"  Mr.  Kinniburgh,  being  asked  whether  he  thought  she  could 
understand  the  question,  whether  she  was  guilty  or  not  guilty  of 
the  crime  of  which  she  was  accused,  answered,  that  in  the  way  in 
which  he  puts  the  question,  asking  her  by  signs  whether  she  threw 
the  child  over  the  bridge  or  not,  he  thought  she  could  plead  not 
guilty  by  signs,  and  this  is  the  only  way  in  which  he  could  put  the 
question  to  her ;  but  that  he  had  no  idea,  abstractly  speaking,  that 

'  Ibid.  i.  56.  Deaf  and  Dumb,  which  was  first  open 

2  Beck  gives  this  date  1807,  which  in  1810,  was  called  in  the  case,  and 

Is  a  manifest  error,  as  Mr.  Kinniburgh,  referred  to  it  in  his  report  for  1S15. 

of  the  Edinburgh  Institution  for  the 

381 


§  468.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

she  knew  what  a  trial  was,  but  she  knew  she  was  brought  into  court 
about  her  child. 

"John  Wood,  Esq.,  auditor  of  excise  (who  is  deaf  and  partially 
dumb),  gave  in  a  written  statement  upon  oath,  mentioning  that  he 
had  visited  the  prisoner  in  prison,  and  was  of  opinion  that  she  was 
altogether  incapable  of  pleading  guilty  or  not  guilty ;  that  she  stated 
the  circumstances  by  signs,  in  the  same  manner  she  had  done  to  the 
court  when  questioned  before  the  court  by  Mr.  Kinniburgh,  and 
seemed  to  be  sensible  that  punishment  would  follow  the  commission 
of  a  crime. 

"  The  court  were  unanimously  of  opinion  that  this  novel  and  im- 
portant question,  of  which  no  precedent  appeared  in  the  law  of  this 
country  [Scotland],  deserves  great  consideration,  and  every  infor- 
mation that  the  counsel  on  each  side  could  procure  and  furnish. 

"At  a  subsequent  period  the  judges  delivered  their  opinion  as 
follows : — 

"  Lord  Hermand  was  of  opinion  that  the  panel  (prisoner)  was 
not  a  fit  object  of  trial.  She  was  deaf  and  dumb  from  her  infancy; 
had  had  no  instruction  whatever  ;  was  unable  to  give  information  to 
her  counsel,  to  communicate  the  names  of  her  exculpatory  witnesses, 
if  she  had  any,  and  was  unable  to  plead  to  the  indictment  in  any 
way  whatever,  except  by  certain  signs  which  he  considered  no 
pleading  whatever. 

"  The  four  other  judges,  however,  overruled  this  opinion,  refer- 
ring especially  to  a  case  (already  mentioned  in  a  former  part  of 
this  paper)  that  had  occurred  in  England,  in  1773,  in  which  one 
Jones,  who  had  stolen  five  guineas,  appearing  to  be  deaf  and  dumb, 
and  being  found  by  the  jury  impanelled  on  that  point  to  be  mute 
'  from  the  visitation  of  God,'  was  arraigned  by  the  means  of  a  woman 
accustomed  to  converse  with  him  by  signs,  found  guilty  and  trans- 
ported. And  it  was  also  observed  that  it  might  be  for  the  prisoner's 
own  good  to  have  a  trial ;  for,  if  the  jury  found  that  her  declara- 
tion, that  she  did  not  intend  to  throw  her  child  in  the  river,  was 
true,  she  Avould  be  acquitted  and  set  free  ;  whereas,  if  not  found 
capable  of  being  tried  for  a  crime,  she  must  be  confined  for  life. 
The  woman  Campbell  was  accordingly  placed  at  the  bar,  and,  when 
the  question  was  put,  guilty  or  not  ?  '  her  counsel,  Mr.  McNeil, 
rose,  and  stated  that  he  could  not  allow  his  client  to  plead  to  the 
indictment,  until  it  was  explained  to  her  that  she  was  at  liberty  to 
382 


BLIND  :    EPILEPTICS.  [§  470. 

plead  guilty  or  not.  Upon  it  being  found  that  this  could  not  he 
done,  the  case  was  dropped,  and  she  was  dismissed  from  the  bar 
simpliciter.  Thus,  though  it  is  established  that  a  deaf-mute  is  doli 
capax,  no  means  have  yet  been  discovered  of  bringing  him  to  trial.' 

"  Certainly  the  system  of  laws  of  Scotland  must  be  defective, 
under  Avhich  important  leading  cases  are  decided,  not  on  broad, 
general  principles,  but  on  mere  formalities  and  technicalities."^ 

The  manner  in  which  deaf  and  dumb  persons  are  to  be  arraigned 
has  been  noticed  in  another  work.^ 

2.  Blind. 

§  469.  Blindness^  can  only  come  in  question  here  when  it  is 
congenital  or  has  originated  in  early  infancy,  for  then 
only  can  it  exercise  decisive  influence  on  the  mental  and    does  not 
moral   development.      In   general,   however,   blindness   gponsibiiity 
is  no  reason  to  suspend  the  personal  responsibility  of  an 
agent ;  the  defects  of  the  mental  and  moral  nature  consequent  upon 
it  are  not  diseases ;  and  the   bearing  which  they  have  upon  the 
degree  of  culpability  ascribable  to  an  act  committed  in  violation  of 
law  must  be  referred  to  the  discretion  of  the  court,  as  guided  by 
the  circumstances  of  each  case.* 

3.  epileptics. ^ 

§  470.  Epileptics,  from  their  nervous  susceptibility  and  their 
tendency  to  mental  alienation,  should  be  regarded  with 

peculiar  tenderness  by  those  to  whom  is  committed  the  temieucy  of 

administration  of  public  iustice.    Nor  should  the  idea  of  a  epilepsy  to 

^  ♦*  ,  insanity. 

recent  recovery  ever  exclude  one  who  has  been  so  afflicted 
from  that  protection  which  would  secure  at  least  a  patient  investi- 
gation of  the  question  of  moral  responsibility.     Recent  investiga- 
tions, conducted  by  men  of  eminent  sagacity  and  great  opportunities 

•  Essay  by  Dr.  Peet ;  see  supra,  §  96.         ^  See  L.  Krahmer,  Handbuch  Gericht. 

2  Wh.  Cr.  L.  §  532.  Med.  Halle,  C.  A.  Schwetschke,  1851, 

3  Shurmayer,  Gericlit.  Med.  563  ;  §  122  ;  see  J.  Briand,  Med.  L4.g.  p.  568, 
and  see  L.  Krahmer,  Handbucli  de  Paris,  1852 ;  M.  Orfila,  Med.  Leg. 
Geridit.  Med.  Halle,  G.  A.  Schwet-  tome  i.  p.  332,  Paris,  1848  ;  M.  Falret, 
sclike,  1851,  §  122  ;  supra,  §  95.  Cliniques  de  Medecine  Meutale,  p.  521, 

*  Compare    Friedreich,     676,    where  Paris,  1854. 
the   learning  on   this   subject   is  col- 
lected. 

383 


§  472.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

of  observation,  have  led  to  the  conclusion  that  epilepsy  produces 
not  only  general  mental  prostration,  but  anomalies  in  the  entire 
moral  and  intellectual  system.  And  although  the  malady  sometimes 
coexists  with  great  intelligence,  yet  the  patient  retains,  not  only 
during  the  attack,  but  for  an  indefinite  period  afterwards,  but  an 
imperfect  use  of  his  faculties,^ 

§  4T1.  Einlepsy  proj^ei'  consists  in  periodical  attacks  of  insensi- 
Nature  of  ^i^i^J?  accompanied  with  involuntary,  convulsive,  and 
epilepsy.  more  or  less  violent  motions  of  the  limbs.  That  persons 
committing  a  violation  of  law,  while  in  this  condition,  are  entitled 
to  the  full  benefit  of  all  the  considerations  which  affect  the  respon- 
sibility of  the  agent,  needs  no  argument  after  what  has  been  already 
said  on  the  subject  of  unsoundness  of  mind.  The  case,  however, 
admits  of  more  difficulty  when  the  question  is  whether,  in  the  in- 
terval between  the  attacks,  a  state  of  mind  does  or  does  not  exist 
calculated  to  destroy  or  diminish  responsibility.^ 

§  472.  It  will  be  peculiarly  necessary,  here,  to  make  a  division 

between  the  several  classes  of  epileptic  diseases.  The 
between  infirmity  is  well  known  to  appear  in  very  different  degrees 
ciasseF^^^    of  intensity  under  diff"erent  circumstances,  and,  as  it  arises 

from  different  physical  causes,  it  may  be  considered  as 
exerting  different  retroactive  influences  on  the  mind  and  the  body. 
It  may  aflfect  the  intellectual  faculties  in  a  very  subordinate  degree, 
as  the  cases  of  men  like  Csesar,  Napoleon,  and  Mohammed  suffi- 
ciently prove.  The  doctrine  therefore  results,  that,  in  general 
epilepsy,  the  usual  presumption  of  responsibility  applies  to  acts 
committed  in  the  intervals  between  one  attack  and  another.^ 

'  Boileau   de   Castlenau  :    De   I'epi-  de  la  Salpltriere,  giving  photographs 

lepsie  dans  ses  rapports  avec  I'aliena-  of  cases  of  hystero-epilepsy,  somnam- 

tion  mentale,  consideres    au   point  de  bulism,  partial  epilepsy,  etc.,  Bourne- 

VTie  medico-judiciare.     Annales  d'Hy-  ville  and  Renaud,  Paris,  1878. 
giene  publ.  et  de  Medecine  Leg.,  Avril,         ^  According  to  Briand,  moral  liberty 

1842,  No.  94.     Erhardt-Ueber  Zurech-  is  entirely  suspended  during  the  at- 

nungsfahigkeit  der  Epileptischen.  tacks.     Au  epileptic,  he  argues,  who 

2  Schlirmayer,  Gericht.  Med.  §  565.  commits  a  homicide  during  the  height 

See  articles  in  the  Am.  Journ.  of  Ins.  of  his   disease,  has  had  no   criminal 

for  1872,  pp.  341.  723,  and  vol.  30,  p.  intention,  and  therefore  cannot  incur 

1 ;   a  resume  of  cases   in   13  Bulletin  responsibility.      See   a   report   of   the 

Med.    Leg.   Soc,    N.    Y.,    p.   205 ;    an  case   of  Isabella   Jenisch,  in   31   Am. 

article  in  19  Journ.  Ment.  Sci.  p.  19  ;  Journ.  of  Ins.  p.  430. 
and  the  Iconographie  photographique 

384 


EPILEPSY.  [§  475. 

§  473.   Obscure  eijilepsy,  as  to  the  existence  of  which  there  can 
be  no  doubt,  since  the  explorations  of  Morel  ,^  may  be        . 
confined  in  its  symptoms  to   dimly  periodic   epileptoid    of  obscure 
conditions,  to  twitching  of  particular  muscles,  to  occa-     ^'  ^^^' 
sional  fixity  of  the   eye,  temporary '  stiffening  or  stoppage   of  the 
organs  of  speech,  and  to  parenthetical  loss  of  memory,  vertigo  epi- 
leptica.     It  is  maintained  still  further  by  this  acute  observer — and 
this  with  the  concurrence  of  Liman,  an  author  whose  conservative 
tendencies  in  this  respect  we  have    already  noticed — that  these 
periodic  attacks  may  exhibit  themselves  exclusively  in  mental  dis- 
turbance, in  extraordinary  excitability,  in  impulses  to  homicide  and 
suicide,  in  sudden  losses  of  memory,  ultimately,  though  perhaps  not 
till  a  long  progress,  culminating  in  epilepsy  proper.     These  cases, 
however,  are  rare,  and  credence  should  be  suspended  until  the  full 
development  of  the  disease  is  reached. 

§  474.  In  particular  cases  the  responsibility  of  the  agent  may  be 
destroyed,  where  real  symptoms  of  derangement  present 
themselves,  and  where  it  is  possible  or  probable  that  the    stages  of 
offence  was  brought  on  by  such  abnormal  state  of  the 
faculties.     The  higher  grades  of  the  disease,  where  it  is  of  long 
standing,  and  where  the  attacks  recur  at  brief  intervals,  cast  a 
doubt  upon  the  psychical  requirements  of  responsibility,  even  where 
nothing  is  observed  which  expressly  characterizes  an  aberration  of 
the  mental  faculties.     The  stage  which  immediately  precedes  an 
attack,  the  premonitory  symptoms  of  heaviness  in  the  head,  dizzi- 
ness, loss  of  consciousness,  etc.,  as  well  as  that  which  immediately 
succeeds  an  attack,  and  consists  in  a  manifest  disorder  of  the  bodily 
and  mental  functions  of  the  subject,  is  to  be  treated  as  connected 
with  the  immediate  attack .^ 

§  475.  The  moral  requirements  of  responsibility  are  satisfied  when 
the  disease  is  not  of  great  intensity,  and  where  the  inter- 
vals show  no  trace  of  an  alteration  of  the  intellectual    notatfect- 
functions  produced  by  it,  and  the  incitement  to  the  act   g^^nity^"^* 
complained  of  is  found  not  in  the  obtuseness  or  ebullition 
generally  peculiar  to  such  patient,  but  in  a  selfish  motive,  and 

'  Traits  des maladies  mentales,  Paris,         ^  Schiirmayer,  Gericht.  Med.  §  567. 
1866,  p.  480. 

VOL.  I.— 25  385 


§  477.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

where  the  execution  of  the  act  betrays  forethought,  reflection,  and 
wilfulness. 

§  476.  Persons  truly  epileptic  are  easily  excited  to  anger  and 
revenge  on  the  slightest  provocation,  in  the  intervals  be- 
interme-  tween  their  attacks.  Although  these  attacks  do  not 
diate  stage,  ^j^y^yg  attain  to  such  a  degree  as  to  deserve  the  name  of 
mental  derangement,  yet  it  should  never  be  forgotten  that  there  is 
always  a  morbid  predisposition  to  insane  ebullitions,  and  in  general 
a  morbid  irritability,  which  must  impair,  if  not  destroy,  the  moral 
responsibility  of  actions  growing  out  of  them.  And,  even  where  a 
sentence  of  punishment  is  pronounced,  it  must  not  be  overlooked 
that  its  execution  may  possibly  exercise  a  most  deleterious  influence 
on  the  health  of  the  individual,  by  aggravating  the  disease,  and 
perhaps  in  forcing  it  into  real  insanity.  It  is  not  advisable^  there- 
fore, to  execute  a  sentence  of  punishment  upon  an  epileptic,  tvithout 
having  submitted  the  case  to  the  examination  of  a  duly  authorized 
forensic  physician} 

§  477.  Different  views,  however,  have  existed  on  this  point. 
Platnei^  denies  the  responsibility  of  any  epileptic  what- 

Tests  ISild 

down  by  ever.  Clarus^  takes  a  view  more  in  harmony  with  those 
Clams.  ^^,g  \i2i\Q  just  advanced,  maintaining  the  following  propo- 

sitions :  — 

1.  Ail  actions  and  omissions  which  take  place  during  the  paroxysm 
of  epilepsy  are  invalid  and  irresponsible. 

2.  When  the  attack  of  habitual  epilepsy  is  succeeded  by,  or 
alternates  with,  a  state  of  mania  or  imbecility,  all  responsibility  is 
at  an  end,  even  where  this  latter  state  is  but  transitory,  because  no 
human  insight  or  experience  can  decide  with  certainty  whether  the 
patient,  at  that  particular  instant,  was  in  an  entirely  sane  condition. 
On  the  other  hand,  civil  acts  done  under  such  circumstances,  if  in- 
telligent, may  be  valid. 

3.  Swooning,  heaviness  of  the  head,  weakness  of  memory,  fever, 
enhanced  irritability,  etc.,  which  precede  or  follow  the  attack,  de- 

1  Ibid.  §  568.     For  a  case  of  here-         *  Qujest.  Med.  For.,  p.  yi. 
ditary  type  of  epilepsy,  see  the  report         *  Beitrage     zur      Ei-kenntniss     mid 
of  Standerman's  case,  32  Am.  .Journ.  '  Beurtheiluiig  zweifelhaften  Seelenzus- 
Ins.  p.  459.     See  also  report  of  a  case    taende,  Leipsic,  1828,  p.  96. 
of  lunacy  in  24  Jouru.  Ment.  Sci.  90. 

386 


EPILEPSY.  [§  478. 

stroj  as  well  the  responsibility  as  the  validity  of  acts  committed 
during  their  continuance. 

4.  Where  it  is  capable  of  proof,  that  the  epileptics,  in  the  inter- 
vals of  their  attacks,  betray  symptoms  of  malice  and  obtuseness, 
justice  demands  that  their  faults  should  be  regarded  as  effects  of  the 
disease,  and  that  they  should  be  held  irresponsible  for  acts  com- 
mitted in  an  ebullition  of  rage  or  other  passion,  while  such  condition 
should  operate  in  mitigation  where  the  crime  presupposes  forecast 
and  reflection. 

5.  Where  the  signs  of  an  altered  state  of  mind  are  wantino;  both 
before  and  after  the  attacks,  the  possibility  still  remains  that  these 
signs  continue  undetected  because  of  their  minuteness,  and  that 
patients  of  this  description  are  less  able  to  resist  sudden  impulses 
than  persons  in  good  health  ;  which  would  suggest  a  mitigation  of 
punishment  for  actions  of  violent  passion,  but  not  for  those  involv- 
ing reflection. 

6.  All  these  propositions  apply  only  to  idiopathic  and  habitual 
epilepsy  ;  not  to  isolated  attacks  which  ensue  upon  other  diseases, 
and  where  no  trace  remains  after  their  cessation. 

7.  The  diseases  connected  with  epileptic  symptoms,  particularly 
hysterical  spasms,  accompanied  with  insensibility,  and  diseases  of 
the  generic  character  of  St.  Vitus's  dance,  are  subject  to  the  rules 
above  laid  down,  under  the  restrictions  mentioned  in  the  last  head, 
because  the  presumption  of  a  latent  propensity  to  ebullitions  of 
passion  is  not,  in  such  cases,  vouched  by  experience.* 

§  478.  The  difficulties,  in  cases  of  pronounced  epilepsy,  confine 
themselves  to  the  question  of  moral  agency  during  the 
intervals  between  the  attacks.     While  the  attack  lasts,    conditions 
the  epileptic  cannot  be  viewed  as  a  free  agent;  and  the   ^iatestao-es 
inquiries  which  the  forensic  psychologist  has  to  answer 
concern,  therefore,  the  intermediate  conditions  of  the  patient.     Is 
he,  in  such  periods,  responsible  for  obligations   entered  into,  or 
offences  committed?     Of  course,  in  replying  to  this,  we  must  put 
aside  those  cases  where  mental  disease,  as  it  frequently  does  in  the 

'  Compare,  on  the  responsibility  of  The  Am.  Journal  of  Insanity,  vol.  xii. 

epileptics,  Friedreich,    Handbuch    der  p.   122,    gives   a   valuable   translation 

gerichtlichen  Psychologie,  p.  637,  and  from  Delasiaure  on  Epilepsy.    See  also 

Henke,  Abhandlungen  aus  dem  Gebiete  an  article  on  Nocturnal  Epilepsy,  24 

der  gerichtlichen Medizin,  vol.  iv.  p.  1.  Journ.  Ment.  Sci.  5G8. 

387 


§  480.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

type  of  dementia,  positively  exhibits  itself  in  the  patient  in  such 
intervals.  This  condition  as  such  destroys  his  responsibility.  We 
have  to  meet  what  may  be  called  an  intermediate  condition — a  con- 
dition, it  may  be,  of  abnormal  excitability,  of  melancholy  in  its  less 
settled  phases,  of  intellectual  debility  more  or  less  marked.  Or 
we  are  presented  with  cases  in  which  the  epileptic  convulsions  are 
but  rare,  slight,  and  tremulous  ;  and  in  which  the  preponderating 
and  far  more  conspicuous  symptoms  are  hypochondria,  irritability, 
dislike  and  even  animosity  to  associates  and  relatives,  suspicious- 
ness, or  sense  of  injury  from  others  resulting  in  overt  acts  of  de- 
fence or  retaliation.  Or  a  still  more  advanced  phase  of  disease 
may  exhibit  itself  in  a  sort  of  temporary  dreaminess,  producing  in- 
coherent and  insensible  acts,  of  which  there  is  subsequently  but  a 
confused  recollection.^  In  itself  this  loss  of  memory  is,  as  has 
been  seen,  an  important  proof  of  suspension  of  responsibility.  But 
the  difficulty  of  proving  such  loss  of  memory  is  much  complicated 
by  the  well-known  tendency  of  epileptics  to  simulate  symptoms,  or 
to  exaggerate  those  which  really  exist. 

§  479.  Liman^  suggests,  as  to  this  point,  that  the  patient  should 
be  examined  as  to  loss  of  memory  on  other  topics  than  that  which 
is  the  subject  of  judicial  investigation.  He  also  argues  that  such 
intermediate  loss  of  consciousness  is  not  to  be  assumed  when  the 
litigated  transaction  required  for  its  consummation  complicated  in- 
tellectual activity,  and  was  elaborated  through  weeks  or  months, 
and  when  for  collateral  points  the  patient's  memory  is  shown  to 
have  been  good.  Certainly  any  less  stringent  test  would  work  great 
injury,  both  to  epileptics,  by  their  business  disfranchisement,  and 
to  the  community,  which  would  be  obliged  to  thus  recognize  them 
as  a  privileged  class  of  outlaws  emancipated  from  the  restraints  of 
the  penal  law. 

§  480.  The  moral  effects  of  epilepsy  have  been  nowhere  more 
emphatically  recorded  than  by  Dr.  Maudsley,  in  his  re- 
ley  on  markable  lectures,  published  in  1870,  under  the  title  of 

effects  of  "  Body  and  Mind."  He  reminds  us  that  a  single  epilep- 
epiiepsy.  ^jg  £|.  ]^^g  j^ggj^  known  to  result  in  an  entire  transforma- 
tion of  character  in  the  patient,  causing  one  who  had  formerly  been 

'  These    states    are    delineated   by        *  Liman's  Casper,  1871,  p.  442. 
Morel,  in  liis  work  already  referred  to, 
and  also  by  Griesinger,  Archiv,  i.  319. 

388 


EPILEPSY.  [§  481. 

gentle,  amiable,  and  tractable,  to  appear  rude,  vicious,  and  perverse. 
Among  confirmed  epileptics,  the  periods  preceding  convulsions  are 
marked  by  moodiness,  irritability,  and  sometimes  by  a  sullen  fierce- 
ness ;  while  in  the  intervals  the  patient  may  be  amiable  and  tracta- 
ble. Sometimes  epileptic  neurosis  may  exist  for  a  long  period  in  a 
masked  and  suppressed  state,  exhibited,  not  by  convulsions,  but  by 
moral  or  mental  perversion.^ 

§  481.  "We  have  had  opportunities,"  says  Mr.  Browne  (1871), 
in  his  work  on  the  Medical  Jurisprudence  of  Insanity,^ 
"  of  inquiring  into  the  case  of  George  Lawton,  who  was  during  epi- 
an  inmate  of  the  West  Riding  Lunatic  Asylum  up  to  the  tack^Law- 
24th  of  March  last,  when  he  was  committed  by  the  cor-  ^^"^'^  ^^^®- 
oner  to  take  his  trial  for  the  wilful  murder  of  attendant  Lomas,  at 
the  assizes  then  being  held  at  Leeds.  Upon  Monday,  the  27th  in- 
stant, George  Lawton  was  placed  at  the  dock  to  take  his  trial.  Mr. 
Baron  Cleasby  was  the  presiding  judge.  Upon  the  evidence  of  Dr. 
Crichton  Browne,  Medical  Director  of  the  West  Riding  Asylum, 
being  taken,  the  jury  were  asked  to  return  a  verdict  as  to  the  capa- 
bility of  the  prisoner  to  plead,  and  returned  a  verdict  that  he  was 
incapable.  The  circumstances  of  this  case,  as  gathered  from  the 
depositions,  are  these :  Lawton  was  admitted  into  the  asylum  in 
1863,  and  suffered  from  epileptic  fits  of  a  severe  character.  Dur- 
ing his  residence  in  the  institution  he  several  times  attempted  to 
commit  suicide,  and,  shortly  before  the  murder  of  the  attendant,  he 
had  struck  a  fellow-patient  in  the  face  with  a  dinner-knife.  The 
deceased  (Lomas)  was  principal  attendant  in  No.  14  ward,  in  which 
Lawton  had  been  placed.  Upon  the  afternoon  of  Friday,  the  24th 
instant,  Lomas  remained  in  the  ward  in  charge  of  Lawton  and  three 
other  patients,  while  the  other  attendants  and  their  charges  went 
out  for  a  walk.  About  three  o'clock  an  attendant  in  the  airing 
court  heard  a  cry,  and,  looking  up  at  the  second  story,  saw  Lawton 
striking  violently  at  something  on  the  ground,  with  what  appeared 
to  be  a  stick.  He  hastened  to  the  ward,  and  met  a  patient  on  the 
step,  who  said,  '  He's  killed,  and  he's  killed,'  and,  upon  entering 

•  As  to  the  effect  of  paralysis,  see    paper   by  Dr.  Meredith  Clymer,  Pro- 
Lond.  Med.  Rec.  N.  S.,  No,  43,  p.  11  ;     ceedings  of  N.  Y.  Med.  Leg.  Soc,  1872, 
and  a  report  of  the  Affair  Cliorinsky,     PP-  444-467. 
19  Journ.  Meiit.  Sci.  308.     See  also  a        '^  Page  229. 

389 


§  481.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

the  padded-room,  he  found  Lomas  lying  in  a  corner,  with  his  skull 
fractured  in  many  places.  The  room  was  spattered  with  brains  and 
blood.  Lawton  was  in  the  day-room  of  the  ward  when  he  was  first 
seen.  He  had  a  poker  in  his  hand,  and  he  said  to  the  attendant, 
as  he  was  about  to  enter,  '  I'll  serve  you  the  same  if  you  come  in 
here.'  That  is  the  whole  story.  The  attendant  died  ten  minutes 
after  the  medical  assistant  was  in  attendance.  The  notes  of  the 
post-mortem  examination  upon  the  body  of  Lomas  indicate  that  he 
must  have  been  struck  repeatedly  with  the  utmost  violence.  The 
condition  of  the  walls  and  roof  of  the  room  in  which  the  murder  was 
committed  points  to  the  same  conclusion.  During  the  whole  of  the 
Friday  night  succeeding  the  murder,  Lawton  was  restless  and  mani- 
acal. He  sprang  out  of  bed  Avhenever  the  attendants,  who  were  in 
charge  of  him,  turned  their  heads.  The  same  excitement  and  rest- 
lessness continued  during  the  forenoon  of  Saturday.  Towards 
evening  he  became  calmer,  and  could  talk  rationally  concerning  the 
crime  he  had  committed.  We  had  a  long  conversation  with  the 
patient  upon  the  afternoon  of  Sunday,  and  came  to  the  conclusion 
that  at  the  time  Ave  observed  him  he  was  to  all  intents  and  purposes 
a  sane  man.  He  certainly  was  weak  minded.  But  he  described 
the  whole  circumstances  of  the  murder  with  intelligent  accuracy. 
He  maintained  that  he  had  no  ill-will  to  the  deceased,  that  he  did 
not  know  w^hy  he  had  done  it,  and  that  the  deceased  had  always 
been  very  kind  to  him.  When  pressed,  he  said  that  he  had  seen 
ships  and  railways  on  the  ceiling  of  his  room  before  going  to  sleep ; 
but  we  did  not  come  to  the  conclusion  that  these  were  insane  illu- 
sions. He  confessed  to  having  done  many  things  to  get  rid  of  his 
fits  ;  to  have  held  his  head  under  the  cold-water  tap,  to  have  gone 
without  butter  or  beer  for  months  past,  to  have  drunk  his  urine,  and 
all  with  a  view  to  cure  himself  of  epileptic  seizures.  He  described 
his  condition  during  the  day  previous  to  the  murder.  He  had 
known  that  a  fit  Avas  coming  on,  and  had  deposited  his  money  and 
tobacco  Avith  the  store-keeper,  lest  they  should  be  taken  from  him 
by  some  other  patient  during  the  unconsciousness  which  Avas  inci- 
dent to  the  attack.  He  had  felt  a  stiffening  of  the  muscles  of  his 
limbs,  and  had,  according  to  his  own  account,  had  a  severe  seizure 
in  the  day-room  upon  that  day. 

"  His  memory  Avith  regard  to  the  occurrences  of  the  morning  of 
390 


EPILEPSY.  [§  481. 

the  Friday  was  not  perfect.  He  sometimes  said  he  remembered 
being  spoken  to  while  at  dinner  by  the  medical  superintendent,  and 
at  other  times  he  did  not  remember  it.  He  said  that  he  had 
refrained  from  taking  meat  that  day,  because  he  thought  it  would 
do  his  soul  good.  He  said  that  he  himself  was  a  Methodist,  but 
that  he  did  feel  better  upon  the  Saturday  morning  for  the  absti- 
nence. With  regard  to  the  crime  itself  he  knew  it  was  wrong.  He 
knew  that  persons  who  were  in  their  right  mind,  and  who  committed 
murder,  were  hanged,  but  he  seemed  to  regard  himself  as  exempted 
from  punishment  because  he  had  fits,  and  because  he  sometimes  did 
not  know  what  he  was  doing.  He  said  he  knew  swearing  was 
wrong;  he  though  it  more  heinous  than  murder.  He  imagined  that 
if  Lomas  was  good,  he  must  have  gone  to  heaven,  and  he  said  he 
hoped  he  had  not  done  him  any  harm.  He  repeatedly  asserted  that 
he  liked  Lomas,  the  murdered  man,  and  that  he  did  not  know  why 
he  had  done  what  he  had  done.  He  spoke  of  having  on  a  former 
occasion  tried  to  jump  through  a  glass  door,  and  having,  before  he 
was  admitted  to  the  asylum,  laid  himself  down  on  the  rails  that  he 
might  be  run  over.  He  seemed  to  connect  these  acts,  or  the  con- 
ditions existing  when  they  were  done,  with  the  murder  of  his 
attendant,  or  the  conditions  which  were  present  at  the  time  of  the 
commission  of  the  crime.  From  the  whole  interview — from  what 
he  said,  from  his  manner  of  saying  it,  from  the  muscular  tremors 
which  every  now  and  then  were  observable  in  his  limbs — we  came 
to  the  conclusion  that  the  crime  for  which  he  was  to  be  tried  was 
due  to  a  simple  suggestion,  arising  during  the  stupid  condition 
which  succeeds  an  attack  of  epilepsy,  and  that  the  temporary  imbe- 
cility was  succeeded  by  epileptic  mania,  which  was  in  its  turn  fol- 
lowed by  a  gradual  restoration  to  the  normal  condition  of  health. 
In  our  presence  the  patient  showed  that  he  was  able  to  read,  that 
he  understood  the  simple  rules  of  arithmetic,  and  that  he  was  cog- 
nizant of  the  ordinary  doctrines  of  religion  in  much  the  same  way 
as  other  people  of  the  same  class  and  with  the  same  amount  of 
education  are.  There  was  considerable  mental  weakness,  but  it 
seemed  to  us  to  be  of  such  a  kind  as  Avould  not  have  incapacitated 
the  patient  in  any  way,  civil  or  criminal,  had  he  been  free  from 
epilepsy." 

391 


§  483.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSTCHOLOGICALLT. 
II.    MENTAL  UNSOUNDNESS  AS  CONNECTED  WITH  SLEEP.^ 

§  482.  Under  this  general  head  may  be  grouped  somnolentia. 
Division  of  o''  sleep-drunkenness  (Schlaftrunkenheit),  somnamlu- 
this  subject  Hgyyi^  and  nigJitmare,  the  two  last  of  -which  may  be  con- 
sidered together.  In  the  forensic  treatment  of  such  maladies,  it  is 
important  for  the  court  to  consider  whether  the  person  subject  to 
such  a  disorder  was  properly  aware  of  it,  and  of  the  possible  conse- 
quences, and  able  to  take  the  precautions  by  which  those  conse- 
quences might  have  been  averted. 

§  483.  Sleep  would  seem  to  be  only  a  peculiar  form  of  cerebral 
life,  and  not  a  negation  of  the  life  of  the  brain  producing 
effect  of  consequent  fatigue,  exhaustion,  or  weakness  ;  it  is  not  to 
the^sen^es  ^^  Supposed  that  the  state  of  sleep  issues  out  of  the 
intellect  itself,  but  the  intellect  is  diverted  by  the  pecu- 
liar change  of  the  action  of  the  brain  into  that  state  of  existence 
which  we  call  sleep.  But  the  intellect  does  not  sleep  ;  nor  can  it 
ever  be  said  that  its  activity  diminishes  during  sleep ;  we  merely 
cease  to  perceive  its  activity.  On  the  other  hand,  we  cannot  doubt 
that  the  activity  which  involves  sleep  may  also  be  morbid,  abnormal, 
and  connected  with  cramps  or  convulsive  symptoms.  Sleep  is  in- 
terrupted by  whatever  terminates  the  peculiar  condition  of  the 
brain  upon  which  sleep  depends  ;  by  the  natural  expiration  of  this 
peculiar  state  of  the  brain  ;  by  vivid  and  sudden  impressions  on  the 
senses,  and  by  disagreeable  sensations.  Now,  in  a  certain  morbid 
condition  of  the  brain  this  awaking  is  not  complete,  and  does  not 
restore  the  Avaking  state  with  a  full  and  correct  perception  of  sur- 
rounding things  ;  but  an  intermediate  state  between  sleeping  and 
waking  is  produced,  which  resembles  intoxication,  and  is  called  the 
intoxicatioyi  of  sleep  (^ScJilaftrunkenJieif).  This  state  admits  of 
action  which  is  directed  by  the  phantoms  of  the  dream  ;  talking  in 
sleep  being  very  nearly  allied  to  waking,  and  dreams  themselves 
being  midway  between  sleep  and  waking,  for  in  the  depths  of  sleep 
we  no  longer  become  conscious  of  dreams. 

Nightmare  and  somnabulism,  on  the  other  hand,  are,  as  will  be 
seen,  distinct  abnormal  conditions  of  continuous  sleep,  and,  under 

1  See  Med.  Leg.  M.  Orfila,  tome  i.  p.  255,  Paris,  1854 ;  Lecjons  Cliniques  de 

456,  Paris,  1848;  M6d.  LSg.  M.Briand,  M.  Falret,  Leqon  4tli,  p.   117,   Paris, 

p.   563,    Paris,    1852;    Renaudin    sur  1854. 
I'Alienation    Mentale,    chap.    6th,   p. 

392 


SLEEP-DRUNKENNESS.  [§  485. 

certain  external  circumstances,  may  lead  to  acts  of  violence.  In 
examining  such  cases  it  is  important  to  inquire  into  the  existence  of 
abnormal  physical  conditions,  such  as  plethora,  predisposition  to 
congestions  in  the  head  or  breast,  actual  congestions,  diseases  of 
the  heart,  abnormal  plethora,  suppressed  haemorrhoids,  eruptions 
of  the  skin,  or  other  habitual  secretions  which  have  been  driven  in, 
nervous  affections  of  various  kinds,  impure  air  in  the  bedroom,  a 
hearty  meal,  or  indulgence  in  ardent  spirits  immediately  or  shortly 
before  going  to  sleep.  Somnamhulism  is  not  a  mere  intensified 
dream,  but  hiforo  medico  must  be  treated  as  a  morbid  independent 
state,  and,  in  a  legal  point  of  view,  every  act  shown  to  have  been 
committed  under  its  influence  is  disconnected  with  voluntary  moral 
agency.^ 

1.  Somnolentia,  or  sleep-drunkenness. 

§  484.  Sleep-drunkenness  may  be  defined  to  be  the  lapping  over 
of  a  profound  sleep  on  the  domains  of  apparent  wakeful- 
ness  producing  an  involuntary  intoxication  on  the  part 
of  the  patient,  which  destroys  at  the  time  his  moral  agency.  Under 
the  name  of  somnolentia,  which  was  given  to  it  by  Ploucquet  and 
subsequent  French  writers,  and  of  Schlaftrunkenlieit,  which  it  was 
styled  by  the  German  school,  it  became  the  subject  of  general 
discussion  at  the  beginning  of  the  present  century.  The  first  case 
in  which  the  symptoms  were  unmistakably  reported  was  that  of 
Buchner.2  A  sentry,  who  had  fallen  asleep  during  his  watch, 
being  suddenly  aroused  by  the  officer  in  command,  fell  upon  the 
latter  with  his  drawn  sword,  with  an  attack  so  furious  that  the  most 
serious  consequences  were  only  averted  by  the  interposition  of 
bystanders.  The  result  of  the  medical  examination  was,  that  the 
act  was  involuntary  and  irresponsible,  being  the  result  of  a  violent 
confusion  of  mind  consequent  upon  the  sudden  involuntary  waking 
from  a  profound  sleep. 

§  485.  Shortly  afterwards  occurred  the  case  of  a  day -laborer, 
who  killed  his  wife  with  a  wagon-tire,  the  blow  being    Case  of 
struck  immediately  upon  his  starting  up  from  a  deep   b/iity  proT 
sleep,  from  which  he  was  forcibly  awakened.     In  this    gj^^p'^jrun- 
case  there  was  evidence  aliunde  that  the  defendant  was   keuness. 

I  Scliiirmayer,  Gerioht.  Med.  §  561.  ^  See  Henke's  Zeitschr.  10  B.  p.  39. 

393 


§  485.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLT. 

seized  Avhen  waking  with  a  delusion  that  a  "  woman  in  white" 
had  snatched  his  wife  from  his  side  and  was  carrying  her  away, 
and  that  his  agony  of  mind  was  so  great  that  his  whole  body  was 
Avet  with  perspiration.  There  Avas  no  doubt  of  the  defendant's 
irresponsibility.^  In  this  country,  the  case  properly  would  fall 
under  the  head  of  excusable  homicide  by  misadventure.'  In  prac* 
tical  result,  these  cases  vary  little  from  an  early  English  case, 
already  noticed,  in  which,  though  there  was  no  psychological .  de- 
fence made,  there  was  proof  of  the  same  delusions  as  to  danger 
heightened  by  the  same  disturbances  of  mind  as  are  produced  by  a 
sudden  waking  up  from  a  deep  sleep.  The  defendant,  being  in  bed 
and  asleep  in  his  house,  his  maid-servant,  who  had  hired  the  de- 
ceased to  help  her  do  her  work,  as  she  was  going  to  let  her  out 
about  midnight,  thought  she  heard  thieves  breaking  open  the  door, 
upon  which  she  ran  up  stairs  to  the  defendant,  her  master,  and 
informed  him  thereof.  Suddenly  aroused,  he  sprang  from  his  bed, 
and,  running  down  stairs  with  his  sword  drawn,  the  deceased  hid 
herself  in  the  buttery,  lest  she  should  be  discovered.  The  defend- 
ant's wife,  observing  some  person  there,  and  not  knowing  her,  but 
conceiving  she  was  a  thief,  cried  out,  "  Here  are  they  who  would 
undo  us;"  and  the  defendant,  in  the  paroxysm  of  the  moment, 
dashing  into  the  buttery,  thrust  his  sword  at  the  deceased  and  killed 
her.^  The  defendant  was  acquitted  under  the  express  instructions 
of  the  court,  and  the  case  has  stood  the  test  of  the  common  law 
courts  for  over  two  hundred  years,  during  which  it  has  never  been 
questioned.  It  is  important  to  observe,  however,  that,  if  it  differs 
from  the  two  cases  already  noticed  under  this  head,  in  the  increased 
naturalness  of  the  delusion  under  which  the  defendant  was  laboring, 
it  differs  from  them  in  the  comparatively  longer  interval  in  wdiich 
his  perceptive  faculties  had  the  opportunity  to  arrange  themselves. 
Let  it  be  supposed  that  it  was  the  wife,  and  not  the  Jiushand,  who 
had  slain  the  deceased.  Under  the  circumstances,  the  result  would 
hardly  have  been  diiFerent,  and  yet  in  this  case  the  distinction  be- 
tween her  responsibility  and  that  of  the  laborer  who  killed  his  wife 
on  the  waking  spasm  is  simply  in  the  degree  of  probability  of  delu- 
sions which  in  both  cases  were  unfounded.  If  in  the  one  case  this 
improbability  was  more  glaring,  let  it  be  recollected  that  there  was 

»  Wildberg's  Jahrbuch,  2  Bd.  p.  32.        s  Levet's  case,  Cro.  Car.  538  ;  1  Hale, 
2  See  Wharton  on  Horn.  210.  42,  474. 

394 


SLEEP-DRUNKENNESS.  [§  486. 

much  less  time  afforded  to  the  patient  to  compose  himself  to  a  rea- 
soning state  of  mind. 

§  486.  Much  more  recently,  a  case  occurred  which  led  to  the 
whole  question  being  re-examined  and  discussed.  A  young  man, 
named  A.  F.,  about  twenty  years  of  age,  was  living  with  his 
parents  in  great  apparent  harmony,  his  father  and  himself  being 
alike  distinguished  for  their  extravagant  devotion  to  hunting.  In 
consequence  of  the  danger  of  nocturnal  attacks,  they  Avere  in  the 
habit  of  taking  their  arms  with  them  into  their  chamber.  On  the 
afternoon  of  September  1st,  1839,  the  father  and  son  having  just 
returned  from  hunting,  their  danger  became  the  subject  of  particu- 
lar conversation.  The  next  day  the  hunting  was  repeated,  and  on 
their  return,  after  taking  supper  with  the  usual  appearance  of  har- 
mony, the  family  retired  at  about  ten  o'clock,  the  father  and  mother 
occupying  one  apartment,  and  the  son  the  next,  both  father  and  son 
taking  their  loaded  arms  with  them  to  bed.  At  one  o'clock,  the 
father  got  up  to  go  into  the  entry,  and  on  his  return  jarred  against 
the  door  opening  into  the  entry,  upon  which  the  son  instantly  sprang 
up,  and.  discharging  his  gun  at  the  father,  gave  the  latter  a  fatal 
wound  in  the  breast,  crying  at  the  same  time,  "  Dog,  what  do  you 
want  here  ?"  The  father  fell  immediately  to  the  ground,  and  the 
son,  then  first  recognizing  him,  sank  on  the  floor  crying,  "0  Jesus! 
it  is  my  father."  The  evidence  was,  that  the  whole  family  were 
subject  to  great  restlessness  in  their  sleep,  and  that  the  defendant 
in  particular  was  affected  by  a  tendency  to  be  easily  distressed  by 
dreams,  which  lasted  for  about  five  minutes  on  waking,  before  their 
efi'ect  was  entirely  dissipated.  His  own  version  of  the  affair  was, 
"  I  must  have  fired  the  gun  in  my  sleep  ;  it  was  moonshine,  and  we 
were  accustomed  to  talk  and  walk  in  our  sleep.  I  recollect  hearing 
something  jar  ;  I  jumped  up,  seized  my  gun,  and  shot  where  I  heard 
the  noise.  I  recollect  seeing  nothing,  nor  am  I  conscious  of  having 
spoken.  The  night  was  so  bright  that  everything  could  have  been 
seen.  I  must  have  been  under  the  delusion  that  thieves  had  broken  in." 
The  concurrent  opinions  of  the  medical  experts  examined  on  the  trial 
were,  that  the  act  was  committed  in  a  state  of  somnolentia  or  sleep- 
drunkenness,  and  that  it  was  not  that  of  a  free  and  responsible  agent. ^ 

1  Henke's  Zeitschrift,  1853,  vol.  Ixv.  Gesetzgebuug,  etc.,  viii.  B.,  Berlin, 
pp.  190-1  ;  and  see  also  a  case  of  much  1798  ;  and  Miiller's  gericlitliclie  Arzuei- 
greater  doubt  in  Klein's  Annalen  der     wissenscliaft,  vol.  i.  302. 

395 


§  488.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  487.  It  is  important  to  distinguish  somnolentia,  or  sleep- 
Somnoien  drunkenness,  which  is  a  state  that  to  a  greater  or  less 
tia  distinct    extent  is  incidental  to  every  individual,  from  somnambu- 

from  som-  ,  •   ,    •  i  i "         t  •         •      •  t      ,    , 

nambu-  lism,  which  IS  an  abnormal  condition  incident  to  a  very 
^^^'  few.      The   experience  of  every-day  life  demonstrates 

how  much  the  former  enters  into  almost  every  relation.  Children, 
particularly,  sometimes  struggle  convulsively  in  the  effort  to  wake 
up,  which  often  is  continued  for  several  minutes.  The  very  ex- 
clamations, "Wake  up" — "Come  to" — which  are  so  common  in 
addressing  persons  in  the  waking  condition,  are  scarcely  necessary 
to  bring  to  the  mind  many  recollections  of  cases  where  the  waking 
struggle  has  been  peculiarly  protracted.  Of  course  there  are  con- 
stitutions where  this  struggle  is  peculiarly  distressing,  just  as  there 
are  constitutions  in  which  the  tendency  to  sleeplessness  is  equally 
marked.  Dr.  Kru^elstein  tells  us  of  a  merchant  of  distinction  who 
had  an  irrepressible  tendency  to  sleep  in  the  afternoons,  and  yet 
who,  whenever  he  was  wakened  up,  was  for  a  few  moments  over- 
come with  a  paroxysm,  over  which  he  had  no  control.  Dr^  Meis- 
ter  himself^  relates  the  following  phenomenon:  "I  was  obliged  to 
take  a  journey  of  eight  miles  on  a  very  hot  summer's  day,  my  seat 
being  with  my  back  to  the  horses,  and  the  sun  directly  in  my  face. 
On  reaching  the  place  of  destination,  and  being  very  weary  and 
with  a  slight  headache,  I  laid  myself  down,  with  my  clothes  on,  on 
a  couch.  I  fell  at  once  asleep,  my  head  having  slipped  under  the 
back  of  the  settee.  My  sleep  was  deep,  and,  as  far  as  I  can  recol- 
lect, without  dreams.  When  it  became  dark,  the  lady  of  the  house 
came  with  a  light  into  the  room.  I  suddenly  awoke,  but,  for  the 
first  time  in  my  life,  without  collecting  myself.  I  was  seized  with 
a  sudden  agony  of  mind,  and,  picturing  the  object  which  was  enter- 
ing the  room  as  a  spectre,  I  sprang  up  and  seized  a  stool,  which,  in 
my  terror,  I  would  have  thrown  at  the  supposed  shade.  Fortu- 
nately, I  was  recalled  to  consciousness  by  the  firmness  and  tact  of 
the  lady  herself,  who,  with  the  greatest  presence  of  mind,  succeeded 
in  composing  my  attention  until  I  was  entirely  awakened." 

§  488.  The  existence  of  this  intermediate  state  between  sleeping 
and  waking,  and  of  the  "  drunkenness"  by  which  it  is  sometimes 

I  Henke's  Zeitsclirift,  vol.  Ixv.  456.  See  Krafft-Ebing,  Transitorische  Irre- 
sein,  1868. 

396 


SLEEP-DRUNKENNESS.  [§  489. 

accompanied,  is  recognized  by  even  the  older  elementary   Necessary 
writers.     Thus  Wendler^  says  :   "  Discern!  autem  possit   termine  re- 
expergefactio  naturalis  a  prseternaturali.     Etenim  somno    ^Po°sibii- 
sensim  reficitur  sensibilitas  animi,  quae,  cum  in  eum  eve- 
hitur  gradum,  ut  solemnibus  pistoque  non  fortioribus  excitamentis 
ad  cogitandum   excitetur,  naturalis   expergefactio  est ;  contra  ubi 
facultate    ilia   parum   aucta,  insolita   incitamentorum  vis   animum 
cogit  ad  statum  vigilise,  prgeternaturalem  banc  dicimus  expergefac- 
tionem." 

The  following  tests  it  is  important  to  apply  in  order  to  determine 
the  question  of  responsibility  :  — 

a.  A  general  tendency  to  deep  and  heavy  sleep  must  be  shown, 
out  of  which  the  patient  could  only  be  awakened  by  violent  and 
convulsive  effort. 

b.  Before  falling  asleep,  circumstances  must  be  shown  producing 
disquiet  which  sleep  itself  does  not  entirely  compose. 

c.  The  act  under  examination  must  have  occurred  at  the  time 
when  the  defendant  was  usually  accustomed  to  have  been  asleep. 

d.  The  cause  of  the  sudden  awakening  must  be  shown.  It  is 
true  that  this  cannot  always  happen,  as  sometimes  the  start  may 
have  come  from  a  violent  dream. 

e.  The  act  must  bear  throughout  the  character  of  unconscious- 
ness. 

/.  The  actor  himself,  when  he  awakes,  is  generally  amazed  at 
his  own  deed,  and  it  seems  to  him  almost  incredible.  Generally 
speaking,  he  does  not  seek  to  evade  responsibility,  though  there  are 
some  unfortunate  cases  in  which  the  wretchedness  of  the  sudden  dis- 
covery overcomes  the  party  himself,  who  seeks  to  shelter  himself 
from  the  consequences  of  a  crime  of  which  he  was  technically, 
though  not  morally,  guilty. 

§  489.  A  very  intelligent  observer.  Dr.  Krugelstein,  has  given 
us  a  critical  and  extended  observation  of  those  cases  in 
which  crimes  have  been  committed  in  the  supposed  som-    tionrof  Dr. 
nolential  state,  in  which  he   draws  the  inferences  that   KrUgei- 

...         stein. 

this  species  of  mania  occurs  chiefly,  if  not  entirely,  with 

persons  who  are  sound  sleepers,  and  are  suddenly  startled,  by  some 

'  Dissertatio  de  Somno.  Lipsise,  lar  case  in  liis  Trans.  Irresein,  1868, 
1805,  p.  23.     Krafft-Ebing  gives  a  simi-     p.  S. 

397 


§  491.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

violent  exterior  cause,  from  a  sleep  which,  from  indigestion  or  other 
causes,  has  been  already  disturbed  and  excited  by  dreams  of  pecu- 
liar vivacity.  Such  cases  are  universally  marked  with  a  want  of 
consciousness  in  the  actor,  and  followed  when  he  awakes  by  entire 
astonishment  and  then  violent  remorse.^ 

§  490.  Dr.  Tayloi^  gives  us  the  following  case  on  the  same  point : 
A  peddler,  who  was  in  the  habit  of  walking  about  the 
by  Dr.  Tay-  Country  armed  with  a  sword-stick,  was  awakened  one 
°^''  evening,  while   lying  asleep  on  the  high-road,  by  a  man 

who  was  accidentally  passing  seizing  him  and  shaking  him  by  the 
shoulders.  The  peddler  suddenly  awoke,  drew  his  sword  and 
stabbed  the  man,  who  afterwards  died.  He  was  tried  for  man- 
slaughter. His  irresponsibility  was  strongly  urged  by  his  counsel, 
on  the  ground  that  he  could  not  have  been  conscious  of  an  act  per- 
petrated in  a  half-waking  state--.  This  was  strengthened  by  the  opinion 
of  the  medical  witness.  The  prisoner  was,  however,  found  guilty. 
Under  such  circumstances  it  was  not  unlikely  that  an  idea  had  arisen 
in  the  prisoner's  mind  that  he  had  been  attacked  by  robbers,  and 
therefore  stabbed  the  man  in  self-defence.^ 

Dr.  Hartshorne,  in  a  note,  tells  us  that  a  somewhat  similar  case 
occurred  in  Philadelphia,  a  few  years  back,  in  which  a  man  was 
shot  with  a  pistol  by  an  acquaintance  whom  he  had  suddenly  aroused 
from  sleep,  late  at  night,  in  an  open  market-house.  The  plea  was, 
that  the  deceased  was  mistaken  for  a  robber  when  the  pistol  was 
fired;  but  the  jury  found  averdict  of  manslaughter. 

§  491.  Two  persons,  in  a  case  cited  by  Mr.  Best,  who  had  been 
hunting  during  the  day,  slept  together  at  night.  One  of 
tia  as  a  de-  them  was  renewing  the  chase  in  a  dream,  and  imagining 
be  unduly  himself  present  at  the  death  of  the  stag,  cried  out  "  I'll 
strained.  kiH  him !  I'll  kill  him!"  The  other,  awakened  by  the 
noise,  got  out  of  bed,  and  by  the  light  of  the  moon  beheld  the 
sleeper  give  several  deadly  stabs  with  a  knife,  in  that  part  of  the 
bed  which  his  companion  had  just  quitted.  Suppose  a  blow 
given  in  this  way  had  proved  fatal,  and  the  two  men  had  been  shown 
to  have  quarrelled  previously  to  retiring  to  rest !     But  a  defence  of 

»  Kriigelstein,  Ueber  die  in  Zustande        "  Med.  Jur.  599,  600. 
derSclilaftrunkenheitveriibtenGe-walt-         ^  R.  v.  Milligan.       Lincoln  Autumn 

thatigkeiten  in  gerichtsarztlicher  Be-  Assizes,  1836. 
ziehung. 

398 


SOMNAMBULISM.  [§492. 

this  kind,  as  is  well  remarked  by  Dr.  Taylor,  may  be  unduly 
strained.  Thus,  where  there  is  an  enmity,  with  a  motive  for  the 
act  of  homicide,  the  murderer  while  sleeping  in  the  same  room  may 
select  the  night  for  an  assault,  and  perpetrate  the  act  in  darkness 
in  order  the  more  effectually  to  screen  himself.  In  the  case  of  Reg. 
V.  Jackson,^  it  was  urged  in  defence  that  the  prisoner,  who  slept  in 
the  same  room  with  the  prosecutor,  had  stabbed  him  in  the  throat, 
owing  to  some  sudden  impulse  during  sleep  ;  and  the  case  of  Milli- 
gan,  above  given,  was  quoted  by  the  learned  counsel  in  support  of 
the  view  that  the  prisoner  was  irresponsible  for  the  act.  It  was 
proved,  however,  that  the  prisoner  had  shown  malicious  feelings 
against  the  prosecutor,  and  that  she  Avished  him  dead.  The  knife 
with  which  the  wound  had  been  inflicted  bore  the  appearance  of 
having  been  recently  sharpened,  and  the  prisoner  must  have  reached 
over  her  daughter  (the  prosecutor's  wife),  who  was  sleeping  in  the 
same  bed  with  him,  in  order  to  produce  the  wound.  These  facts 
are  quite  adverse  to  the  supposition  of  the  crime  having  been  per- 
petrated under  an  impulse  from  sleep,  and  the  prisoner  was  con- 
victed.  In  another  case,  Reg.  v.  French,^  it  was  proved  that  the 
prisoner  while  sleeping  in  the  same  room  had  killed  the  deceased, 
who  was  a  stranger  to  him,  under  some  delusion.  There  was,  how- 
ever, clear  evidence  that  the  prisoner  was  insane,  and  on  this  ground 
he  was  acquitted  under  the  direction  of  the  judge.^  In  a  subse- 
quent case  in  Ireland,  where  the  same  defence  could  with  much 
justice  have  been  presented,  the  defendant,  though  under  circum- 
stances throwing  much  doubt  on  the  verdict,  was  convicted.* 

2.  /Somnambulism. 

§  492.  Somnambulism,  according  to  the  usual  acceptation,  in- 

volves  (1^  continuousness,  not  being  merely  a  transition    ^ 

^  ,         .  ,         ,  .  ,^.  Conditions 

momentary  state  between  sleeping  and  waking ;   (2)  a    otsomnam- 
sort   of   supersensual  or  ecstatic   consciousness,  which 
enables  the  patient  to  find  his  way  with  his  eyes  closed,  or  with  his 
vision  so  abnormally  excited  as  to  fail  to  present  to  him  anything 
more  than  a  certain  path,  or  certain  objects  on  Avhich  his  attention 

'  Liverpool  Autumn  Ass.  1847.  ^  Taylor's  Med.  Jurisprudence,  pp. 

2  Dorset  Autumn  Ass.  1846.  599,  600. 

*  See  22  Am.  Jour,  of  Ins.  25. 

399 


^  493.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLY. 

is  absorbed.  Perhaps  the  latter  condition  may  be  more  correctly 
defined  as  that  of  a  state  of  dreamy  abstraction,  in  which  the  ob- 
jects of  a  dream  are  exclusively  observed  and  pursued.  In  a 
limited  degree  this  is  frequently  observable  in  children,  who  at 
night,  especially  when  the  room  is  lighted  by  the  moon,  will  rise 
from  their  bed  and  wander  into  their  mother's  room,  apparently  in 
a  dreamy  state,  incapable  of  giving  clear  answers,  and  without 
subsequent  waking  recollection  of  having  made  such  a  move.  But 
as  to  adults,  it  is  to  be  observed  that  the  condition  is  easily  simu- 
lated, and  that  as  the  cases  of  adult  somnambulism  reported  in  re- 
cent years  are  very  rare,  and  are  sustained  by  meagre  proof,  we 
may  indulge  in  a  reasonable  doubt  whether  most  of  the  earlier 
cases  are  not  to  be  solved  by  the  hypothesis  of  simulation,  or  of 
mythical  exaggeration.  Certainly,  when  an  act  is  intelligently 
done  by  an  adult,  and  for  an  intelligible  purpose,  the  defence  of 
somnambulism  is  one  of  the  wildest  that  can  be  offered. 

§  493.  "  Dreaming,"  says  Dr.  Rush,  "is  a  transient  paroxysm 

of  delirium.      Somnambulism   is   nothing  but  a  higher 

buiism™"      grade   of  the  same  disease.     It  is  a  transient  paroxysm 

species  of      Qf  madness.     Like  madness,  it  is  accompanied  with  mus- 

deelinum.  .        .  ^ 

cular  action,  with  incoherent  or  coherent  conduct,  and 
with  that  complete  oblivion  of  both  which  takes  place  in  the  worst 
grade  of  madness.  Coherence  of  conduct  discovers  itself  in  per- 
sons who  are  affected  with  it  undertaking  or  resuming  certain 
habitual  exercises  or  employments.  Thus  we  read  of  the  scholar 
resuming  his  studies,  the  poet  his  pen,  and  the  artisan  his  labors, 
while  under  its  influence,  with  their  usual  industry,  taste,  and  cor- 
rectness. It  extended  still  further  in  the  late  Dr.  Blacklock, 
of  Edinburgh,  who  rose  from  his  bed,  to  which  he  had  retired  at 
an  early  hour,  came  into  the  room  where  his  family  were  assembled, 
conversed  with  them,  and  afterwards  entertained  them  with  a 
pleasant  song,  without  any  of  them  suspecting  he  was  asleep,  and 
without  his  retaining  after  he  awoke  the  least  recollection  of  what 
he  had  done."^ 

•  Rush  on  the  Mind,  pp.  302,   303.  Handbuch  der  Gericht.  Med.  Halle,  C. 

See    E.    L.    Heim,    vermischte    med.  A.  Schwetschke,  1851,  §  115.    Siebold, 

Schriften,  herausg.    von   A.    Paetsch.  Lehrbuch  dei-  Gericht.  Med.      Berlin, 

Leipsic,    1836,   §    336.      L.   Krahmer,  1847,  §  196. 
400 


SOMNAMBULISM.  [§  495. 

§  494.  A  German  psychologist^  gives  us,  in  great  minuteness, 
a  narrative  of  a  young  woman,  a  somnambulist,  who, 
when  twenty-three  years  old,  having  been  previously  in    of  somnam- 
good  health,  and  regular  in  her  menstruation,  was  seized   ducin^  un- 
with  epilepsy  in  consequence  of  a  fright  produced  by  an    nesrand^' 
attack  of  robbers.      She  soon  became  the  victim  of  som-   irresponsi- 
nambulism,  which  manifested  itself  in  all  its  ordinary 
incidents,  such  as  deep  sleep,  want  of  memory  and  firmness  in  her 
movements  when  under  its  influence.     While  in  the  somnambulic 
condition,  she  had  the  habit  of  concealing  articles  of  various  kinds, 
the  result  of  which  Avas  that  she  was  charged  with  theft.     Under 
the  advice  of  Dr.  Dornbliith  she  was  finally  acquitted,  and  under 
his  care  was  gradually  restored  to  health. 

§  495.  Dr.  Upham  gives  us  the  following  American  illustration: 
"A  farmer  in  one  of  the  counties  of  Massachusetts,  according  to 
the  account  of  the  matter  which  was  published  at  the  time,  had 
employed  himself  for  some  weeks  in  the  Avinter  thrashing  his  grain. 
One  night,  as  he  Avas  about  closing  his  labors,  he  ascended  a  ladder 
to  the  top  of  the  great  beams  in  the  barn,  Avhere  the  rye  which  he 
was  thrashing  Avas  deposited,  to  ascertain  what  number  of  bundles 
remained  unthrashed,  which  he  determined  to  finish  the  next  day. 
The  ensuing  night,  about  tAvo  o'clock,  he  was  heard  by  one  of  the 
family  to  arise  and  go  out.  He  repaired  to  his  barn,  being  sound 
asleep  and  unconscious  of  what  he  was  doing,  set  open  his  barn 
doors,  ascended  the  great  beams  of  the  barn  where  his  rye  was 
deposited,  thrcAV  doAvn  a  flooring,  and  commenced  thrashing  it. 
When  he  had  completed  it,  he  raked  off"  the  straAV  and  shoved  the 
rye  to  one  side  of  the  floor,  and  again  ascended  the  ladder  with 
the  straAV,  and  deposited  it  on  some  rails  that  lay  across  the  great 
beams.  He  then  threw  doAvn  another  flooring  of  rye,  Avhich  he 
thrashed  and  finished  as  before.  Thus  he  continued  his  labors 
until  he  thrashed  five  floorings,  and  on  returning  from  throwing 
doAvn  the  sixth  and  last,  and  in  passing  over  part  of  the  haymow, 
he  fell  off",  where  the  hay  had  been  cut  doAvn  about  six  feet,  to  the 
lower  part  of  it,  which  aAvoke  him.  He  at  first  imagined  himself 
in  his  neighbor's  barn,  but,  after  groping  about  in  the  dark  for  a 
long  time,  ascertained  that  he  Avas  in  his  OAvn,  and  at  length  found 

'  Dornbliltli,  Geschichte  einer  Nachtwaiidlerin,  Ilcnke's  Zeitsclirift,  xxxii.  2. 

VOL.  I.— 26  401 


§  496.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

the  ladder,  on  which  he  descended  to  the  floor,  closed  his  barn- 
doors, which  he  found  open,  and  returned  to  his  house.  On  coming 
to  the  light  he  found  himself  in  such  a  profuse  perspiration  that  his 
clothes  were  literally  wet  through.  The  next  morning,  on  going  to 
his  barn,  he  found  that  he  had  thrashed  during  the  night  five 
bushels  of  rye,  had  raked  the  straw  off  in  good  order  and  deposited 
it  on  the  great  beams,  and  carefully  shoved  the  grain  to  one  side 
of  the  floor,  without  the  least  consciousness  of  what  he  was  doing, 
until  he  fell  from  the  hay."^ 

"A  man  in  this  state,"  says  Falret,  "  has  no  longer  the  same 
relations  with  the  exterior  world.  He  enters  into  movements  which 
seem  the  result  of  the  will,  since  he  avoids  blows  and  falls  with  the 
greatest  nicety ;  and  yet  he  does  not  seem  to  see,  or  at  least  his 
sight  appears  very  confused.  The  mind  is  evidently  in  action, 
since  somnambulists  often  write  things  which  they  were  unable  to 
do  when  awake,  maintain  conversation,  and  perform  actions  imply- 
ing regular  ideas.  And  yet  after  the  attack  they  preserve  no 
remembrance  of  their  thoughts,  feelings,  or  actions,  as  if  conscious- 
ness had  been  entirely  obliterated  Avhilst  it  lasted."^ 

§  496.     The  views  of  Abercrombie  have  been  so  long  appealed 

to  on  this  point  that  we  cannot  refrain  from  givins;  them 
Dr.  Aber-  .  .  o         o 

crombie's      here  in  full:    "Somnambulism,"  he  says,  "appears  to 

suWect—      differ  from  dreaming  chiefly  in  the  degree  in  which  the 

somnam-  bodilv  functions  are  affected.     The  mind  is  fixed,  in  the 

bulist  not  "^ 

responsible  same  manner  as  in  dreaming,  upon  its  own  impressions 

for  his  acts.  .                      ^          ^                  l       •   l            •           l          ^ 

as  possessmg  a  real  and  present  existence  m  external 
things;  but  the  bodily  organs  are  more  under  the  control  of  the 
will,  so  that  the  individual  acts  under  the  influence  of  erroneous 
conceptions,  and  holds  conversation  in  regard  to  theoi.  He  is  also, 
to  a  certain  degree,  susceptible  of  impressions  from  without,  through 
his  organs  of  sense  ;  not,  however,  so  as  to  correct  his  erroneous 
impressions,  but  rather  to  be  mixed  up  Avith  them.  A  variety  of 
remarkable  phenomena  arise  out  of  these  peculiarities,  which  will  be 
illustrated  by  a  slight  outline  of  this  singular  affection.  The  first  de- 
gree of  somnambulism  generally  shows  itself  by  a  propensity  to  talk 

1  Upliam  on  Mental  Action,  pp.  182,  2  Lemons  Cliniques  de  I'Ali^nation 
183.  See  also  article  by  M.  Alfred  de  Mentale,  par  M.  Falret,  Legou  4,  p.  121. 
Maury,  18  Am.  Journ.  of  Ins.  236.  Paris,  1854. 

402 


SOMNAMBULISM.  [§  496. 

during  sleep — the  person  giving  a  full  and  connected  account  of  what 
passes  before  him  in  dreams,  and  often  revealing  his  own  secrets  or 
those  of  his  friends.  Walking  during  sleep  is  the  next  degree,  and  that 
from  which  the  affection  derives  its  name.  The  phenomena  connected 
with  this  form  are  familiar  to  every  one.  The  individual  gets  out 
of  bed  ;  dresses  himself ;  if  not  prevented,  goes  out  of  doors  ;  walks 
frequently  over  dangerous  places  in  safety  ;  sometimes  escapes  by  a 
window  and  gets  to  the  roof  of  a  house  ;  after  a  considerable  inter- 
val, returns  and  goes  to  bed ;  and  all  that  has  passed  conveys  to 
his  mind  merely  the  impression  of  a  dream.  A  young  nobleman 
mentioned  by  Hortensius,  living  in  the  citadel  of  Breslau,  was  ob- 
served by  his  brother,  who  occupied  the  same  room,  to  rise  in  his 
sleep,  wrap  himself  in  a  cloak,  and  escape  by  a  window  to  the 
roof  of  the  building.  He  there  tore  in  pieces  a  magpie's  nest, 
wrapped  the  young  birds  in  his  cloak,  returned  to  his  apartment, 
and  went  to  bed.  In  the  morning  he  mentioned  the  circumstance 
as  having  occurred  in  a  dream,  and  could  not  be  persuaded  that 
there  had  been  anything  more  than  a  dream,  till  he  was  shown  the 
magpies  in  his  cloak.  Dr.  Prichard  mentions  a  man  who  rose  in 
his  sleep,  dressed  himself,  saddled  his  horse,  and  rode  to  the  place 
of  a  market  which  he  was  in  the  habit  of  attending  once  every  week ; 
and  Martinet  mentions  a  man  who  was  accustomed  to  rise  in  his 
sleep  and  pursue  his  business  as  a  saddler.  There  are  many  in- 
stances on  record  of  persons  composing,  during  the  state  of  somnam- 
bulism :  as  of  boys  rising  in  their  sleep  and  finishing  their  tasks 
which  they  had  left  incomplete.  A  gentleman  at  one  of  the  English 
universities  had  been  very  intent  during  the  day  in  composition  of 
some  verses  which  he  had  not  been  able  to  complete :  during  the 
following  night  he  arose  in  his  sleep  and  finished  his  composition, 
then  expressed  great  exultation,  and  returned  to  bed.  In  these 
common  cases,  the  affection  occurs  during  ordinary  sleep ;  but  a 
condition  very  analogous  is  met  with,  coming  on  in  the  daytime,  in 
paroxysms  during  which  the  person  is  affected  in  the  same  manner 
as  in  the  state  of  somnambulism,  particularly  with  an  insensibility 
to  external  impressions :  this  presents  some  singular  phenomena. 
These  attacks  in  some  cases  come  on  without  any  warning ;  in 
others,  they  are  preceded  by  a  noise  or  sense  of  confusion  in  the 
head.  The  individuals  then  become  more  or  less  abstracted,  and 
are  either  unconscious  of  any  external  impressions,  or  very  confused 

403 


§  496.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

in  their  notions  of  external  things.  They  are  frequently  able  to 
talk  in  an  intelligible  and  consistent  manner,  but  always  in  reference 
to  the  impression  -which  is  present  in  their  own  minds.  They  in 
some  cases  repeat  long  pieces  of  poetry,  often  more  correctly  than 
they  can  do  in  their  waking  state,  and  not  unfrequently  things 
which  they  could  not  repeat  in  their  state  of  health,  or  of  wdiich 
they  were  supposed  to  be  entirely  ignorant.  In  other  cases  they 
hold  convei'sation  with  imaginary  beings,  or  relate  circumstances  or 
conversations  which  occurred  at  remote  periods,  and  which  they 
were  supposed  to  have  forgotten.  Some  have  been  known  to  sing 
in  a  style  far  superior  to  anything  they  could  do  in  their  waking 
state  ;  and  there  are  some  well-authenticated  instances  of  persons 
in  this  condition  expressing  themselves  correctly  in  languages  with 
which  they  were  imperfectly  acquainted.  I  had  lately  under  my 
care  a  young  lady  who  is  liable  to  an  afiection  of  this  kind,  Avhich 
comes  on  repeatedly  during  the  day,  and  continues  from  ten  minutes 
to  an  hour  at  a  time.  Without  any  warning,  her  body  became 
motionless,  her  eyes  open,  fixed,  and  entirely  insensible,  and  she 
became  totally  unconscious  of  any  external  impression.  She  has 
been  frequently  seized  while  playing  on  the  piano,  and  has  con- 
tinued to  play,  over  and  over,  part  of  a  tune  with  perfect  correct- 
ness, but  without  advancing  beyond  a  certain  point.  On  one  occa- 
sion she  was  seized  after  she  had  begun  to  play  from  the  book  a 
piece  of  music  which  was  new  to  her.  During  the  paroxysm  she 
continued  the  part  Avhich  she  had  played,  and  repeated  it  five  or 
six  times  with  perfect  correctness  ;  but  on  coming  out  of  the  attack 
she  could  not  play  it  without  the  book.  During  the  paroxysms  the 
individuals  are,  in  some  instances,  totally  insensible  to  anything 
that  is  said  to  them  ;  but  in  others  they  are  capable  of  holding  con- 
versation with  another  person  with  a  tolerable  degree  of  consistency, 
though  they  are  influenced  to  a  certain  degree  by  these  mental 
visions,  and  are  very  confused  in  their  notions  of  external  things. 
In  many  cases,  again,  they  are  capable  of  going  on  with  the  manual 
occupations  in  which  they  had  been  engaged  before  the  attack. 
This  occurred  remarkably  in  a  watchmaker's  apprentice  mentioned 
by  Martinet.  The  paroxysms  on  him  appeared  once  in  fourteen  days, 
and  commenced  with  a  feeling  of  heat  extending  from  the  epigastrium 
to  the  head.  This  was  followed  by  confusion  of  thought,  and  this 
by  complete  insensibility  ;  his  eyes  were  open,  but  fixed  and  vacant, 
404 


SOMNAMBULISM.  [§  496. 

and  he  was  totally  insensible  to  anything  that  was  said  to  him,  or 
to  any  external  impression.  But  he  continued  his  usual  employ- 
ment, and  was  always  much  astonished,  on  his  recovery,  to  find  the 
change  that  had  taken  place  in  his  work  since  the  commencement 
of  his  paroxysm.  This  case  afterwards  passed  into  epilepsy.  Some 
remarkable  phenomena  are  presented  by  this  singular  affection, 
especially  in  regard  to  exercises  of  memory  and  the  manner  in 
which  old  associations  are  recalled  into  the  mind :  also,  in  the  dis- 
tinct manner  in  which  the  individuals  sometimes  express  themselves 
on  subjects  with  which  they  had  formerly  shown  but  an  imperfect 
acquaintance.  In  some  of  the  French  cases  of  epidemic  '  extase,' 
this  has  been  magnified  into  speaking  unknown  languages,  predict- 
ing future  events,  and  describing  occurrences  of  which  the  persons 
could  not  have  possessed  any  knowledge.  These  stories  sefem,  in 
some  cases,  to  resolve  themselves  merely  into  embellishment  of  what 
really  occurred,  but  in  others  there  can  be  no  doubt  of  connivance 
and  imposture.  Some  facts,  however,  appear  to  be  authentic,  and 
are  suificiently  remarkable.  Two  females,  mentioned  by  Bertrand, 
expressed  themselves  during  the  paroxysm  very  distinctly  in  Latin. 
They  afterward  admitted  that  they  had  some  acquaintance  with  the 
language,  though  it  was  imperfect.  An  ignorant  servant-girl,  men- 
tioned by  Dr.  Dewar,  during  paroxysms  of  this  kind  showed  an 
astonishing  knowledge  of  geography  and  astronomy  ;  and  expressed 
herself  in  her  own  language  in  a  manner  which,  though  often  ludi- 
crous, showed  an  understanding  of  the  subject.  The  alternations 
of  the  seasons,  for  example,  she  explained  by  saying  that  the  world 
was  set  a-gee.  It  was  afterwards  discovered  that  her  notions  on 
this  subject  had  been  derived  from  hearing  a  tutor  giving  instruc- 
tions to  the  young  people  of  the  family.  A  woman  who  was  some 
time  ago  in  the  Infirmary  of  Edinburgh  on  account  of  an  affection 
of  this  kind,  during  her  paroxysms  mimicked  the  manner  of  the 
physicians,  and  repeated  correctly  some  of  their  prescriptions  in 
the  Latin  language.  Another  very  singular  phenomenon  presented 
by  some  instances  of  this  affection  is  what  has  been  called,  rather 
incorrectly,  a  state  of  double  consciousness.  It  consists  in  the 
individual  recollecting,  during  a  paroxysm,  circumstances  which 
occurred  in  a  former  attack,  though  there  was  no  remembrance  of 
them  during  the  interval.  This,  as  well  as  various  other  phenomena 
connected  with  the  affection,  is  strikingly  illustrated  in  a  case  de- 

405 


§  496.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

scribed  by  Dr.  Dyce,  of  Aberdeen,  in  the  Edinburgh  Philosophic 
Transactions.  The  patient  was  a  servant-girl,  and  the  affection 
began  with  fits  of  somnolency,  which  came  upon  her  suddenly  during 
the  day,  and  from  which  she  could,  at  first,  be  aroused  by  shaking, 
or  by  being  taken  out  in  the  open  air.  She  soon  began  to  talk  a 
great  deal  during  the  attacks,  regarding  things  which  seemed  to  be 
passing  before  her,  as  a  dream ;  and  she  w^as  not,  at  this  time, 
sensible  of  anything  that  was  said  to  her.  On  one  occasion  she 
repeated  distinctly  the  baptismal  service  of  the  Church  of  England, 
and  concluded  with  an  extemporai-y  prayer.  In  her  subsequent 
paroxysm  she  began  to  understand  what  was  said  to  her,  and  to 
answer  with  a  considerable  degree  of  consistency,  though  the 
answers  were  generally,  to  a  certain  degree,  influenced  by  her 
hallucinations.  She  also  became  capable  of  following  her  usual 
employments  during  the  paroxysm ;  and  at  one  time  she  laid  out 
the  table  correctly  for  breakfast,  and  repeatedly  dressed  herself 
and  the  children  of  the  family,  her  eyes  remaining  shut  the  whole 
time.  The  remarkable  circumstance  was  now  discovered,  that  dur- 
ing the  paroxysm  she  had  a  distinct  recollection  of  what  took  place 
in  her  former  paroxysms,  though  she  had  no  remembrance  of  it 
during  the  intervals.  At  one  time  she  was  taken  to  church  while 
under  the  attack,  and  there  behaved  with  propriety,  evidently 
attending  to  the  preacher  ;  and  she  was  at  one  time  so  much  affected 
as  to  shed  tears.  In  the  interval  she  had  no  recollection  of  having 
been  at  church  ;  but  in  the  next  paroxysm  she  gave  a  most  distinct 
account  of  the  sermon,  and  mentioned  particularly  the  part  of  it  by 
which  she  had  been  so  affected.  This  woman  described  the  parox- 
ysm as  coming  on  with  a  cloudiness  before  her  eyes,  and  a  noise  in 
the  head.  During  the  attack  her  eyelids  were  generally  half-shut; 
her  eyes  sometimes  resembled  those  of  a  person  afiiicted  with  amau- 
rosis— that  is,  with  a  dilated  and  insensible  state  of  the  pupil,  but 
sometimes  they  Avere  quite  natural.  She  had  a  dull  vacant  look  ; 
but,  when  excited,  knew  what  was  said  to  her,  though  she  often 
mistook  the  person  who  was  speaking ;  and  it  was  observed  that 
she  seemed  to  discern  objects  best  which  were  faintly  illuminated. 
The  paroxysms  generally  continued  about  an  hour,  but  she  could  often 
be  roused  out  of  them  ;  she  then  yawned  and  stretched  herself,  like 
a  person  awaking  out  of  sleep,  and  instantly  knew  those  about  her. 
At  one  time,  during  the  attack,  she  read  distinctly  a  portion  of  a 
406 


SOMNAMBULISM.  [§  498. 

book  which  was  presented  to  her ;  and  she  often  sung,  both  sacred 
and  common  pieces,  incomparably  better,  Dr.  Dyce  affirms,  than 
she  could  do  in  a  waking  state.  The  affection  continued  to  recur 
for  about  six  months,  and  ceased  when  a  particular  change  took 
place  in  her  constitution." 

§  497.  "  We  have  another  very  remarkable  modification  of  this 
affection,  referred  to  by  Mr.  Combe,  as  described  by  Major  Elliot, 
Professor  of  Mathematics  in  the  United  States  Military  Academy 
at  West  Point.  The  patient  was  a  young  lady  of  cultivated  mind, 
and  the  affection  began  with  an  attack  of  somnolency,  which  Avas 
protracted  several  hours  beyond  the  usual  time.  When  she  came 
out  of  it,  she  was  found  to  have  lost  every  kind  of  acquired  knowl- 
edge. She  immediately  began  to  apply  herself  to  the  first  elements 
of  education,  and  was  making  considerable  progress,  when,  after 
several  months,  she  was  seized  with  a  second  fit  of  somnolency. 
She  was  now  at  once  restored  to  all  the  knowledge  which  she  had 
possessed  before  the  first  attack,  but  without  the  least  recollection 
of  anything  that  had  taken  place  during  the  interval.  After  an- 
other interval  she  had  a  third  attack  of  somnolency,  which  left  her 
in  the  same  state  as  after  the  first.  In  this  manner  she  suffered 
these  alternate  conditions  for  a  period  of  four  years,  with  the  very 
remarkable  circumstance  that  during  one  state  she  retained  all  her 
original  knowledge,  but  during  the  other,  that  only  which  she  had 
acquired  since  the  first  attack.  During  the  healthy  interval,  for 
example,  she  was  remarkable  for  the  beauty  of  her  penmanship; 
but  during  the  paroxysm,  wrote  a  poor,  awkward  hand.  Persons 
introduced  to  her  during  the  paroxysm,  she  recognized  only  in  a 
subsequent  paroxysm,  but  not  in  the  interval ;  and  persons  whom 
she  had  seen  for  the  first  time  during  the  healthy  interval,  she  did 
not  recognize  under  the  attack."^  , 

§  498.  Carus  tells  us  in  his  lectures  (Leipsic,  1831),  of  a  clergy- 
man who  was  a  somnambulist,  who  would  get  up  in  his 

.  TO  Instances 

sleep,  take  paper,  and  write  out  a  sermon.     If  a  passage    of  som- 
did  not  please  him,  he  would  strike  it  out,  and  correct  it 
with  great  accuracy.     We  are  told  by  Steltzer  of  a  somnambulist 
who  clambered  out  of  a  garret  window,  descended  into  the  next 

1  Abercrombie  on  the  Intellectual  Powers,  p.  238,  etc. 

407 


§  500.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

house,  and  killed  a  young  girl  who  was  asleep  there.^  As  a  set-off 
to  these,  we  have  the  case  of  a  preassumed  somnambulism  for  the 
purpose  of  cloaking  an  intended  crime .^ 

§  499.  A  curious  example  of  somnambulism,  observed  in  a  monk, 
is  mentioned  by  M.  de  Savarin,  as  related  to  him  by  the 

Case  nearly         .  „    ,  i  •     i 

causing  an     prior  01  the  convent  where  it  happened,  who  was  an  eye- 

homicMe!^"^  witness  of  the  occurrence.  "  Very  late  one  evening  the 
patient  somnambulist  entered  the  chamber  of  the  prior, 
his  eyes  were  open  but  fixed,  the  light  of  two  lamps  made  no  im- 
pression upon  him,  his  features  were  contracted,  and  he  carried  in 
his  hand  a  large  knife.  Going  straight  to  the  bed,  he  had  first  the 
appearance  of  examining  if  the  prior  was  there.  He  then  struck 
three  blows,  which  pierced  the  coverings,  and  even  a  mat  which 
served  the  purpose  of  a  mattress.  In  returning,  his  countenance 
was  unbent,  and  was  marked  by  an  air  of  satisfaction.  The  next 
day  the  prior  asked  the  somnambulist  what  he  had  dreamed  of  the 
preceding  night,  and  the  latter  answered  that  he  had  dreamed  that 
his  mother  had  been  killed  by  the  prior,  and  that  her  ghost  had 
appeared  to  him  demanding  vengeance,  that  at  this  sight  he  was  so 
transported  by  rage,  that  he  had  immediately  run  to  stab  the 
assassin  of  his  mother ;  that,  a  little  while  after,  he  awoke  bathed 
in  perspiration,  and  very  content  to  find  he  had  only  dreamed." 
M.  de  Savarin  adds,  that,  if  under  these  circumstances  the  prior 
had  been  killed,  the  monk  somnambulist  could  not  have  been  pun- 
ished, because  it  would  have  been  upon  his  part  an  involuntary 
homicide.^ 

§  600.  "  You  have  all  heard,"  said  Sir  William  Hamilton,  in  one 

of  his  lectures  on  metaphysics,  "  of  the  phenomenon  of 
Opinion  of  .  t        ,  •  ,     ,  i 

SirW.  somnambulism.     In  this   remarkable  state   the  various 

that  con-  mental  faculties  are  usually  in  a  higher  degree  of  power 
fr^resenr  ^^^"^  ^^  ^^^  natural.  The  patient  has  recollections  of 
insomnam-  what  he  has  wholly  forgotten.  He  speaks  languages  of 
which,  when  awake,  he  remembers  not  a  word.  If  he 
uses  a  vulgar  dialect  when  out  of  this  state,  in  it  he  employs  only 
a  correct  and  elegant  phraseology.     The  imagination,  the  sense  of 

1  Steltzer,  iiber  den  Willen,  Leips.,        '  Physiologie  du  gout,  tome  ii.  p.  3. 
1817-18,  p.  273.  Paris,  1834. 

2  Faiiner,   System  der  Ger.  Arznei. 
1  Bd.  p.  43. 

408 


SOMNAMBULISM.  [§  500. 

propriety,  and  the  faculty  of  reasoning,  are  all  in  general  exalted. 
The  bodily  powers  are  in  high  activity,  and  under  the  complete 
control  of  the  will ;  and,  it  is  well  known,  persons  in  this  state  have 
frequently  performed  feats,  of  which,  when  out  of  it,  they  would 
not  even  have  imagined  the  possibility.  And,  what  is  even  more 
remarkable,  the  difference  of  the  faculties  in  the  two  states  seems 
not  confined  merely  to  a  difference  in  degree.  For  it  happens,  for 
example,  that  a  person  who  has  no  ear  for  music  when  awake  shall, 
in  his  somnambulic  crisis,  sing  with  the  utmost  correctness  and  with 
full  enjoyment  of  his  performance.  Under  this  affection  persons 
sometimes  lie  half  their  lifetime,  alternating  between  the  normal 
and  abnormal  states,  and  performing  the  ordinary  functions  of  life 
indifferently  in  both,  with  this  distinction,  that  if  the  patient  be  dull 
and  doltish  when  he  is  said  to  be  awake,  he  is  comparatively  alert 
and  intelligent  when  nominally  asleep.  I  am  in  possession  of  three 
works,  written  during  the  crisis  by  three  different  somnambulists. 
Now  it  is  evident  that  consciousness,  and  an  exalted  consciousness, 
must  be  allowed  in  somnambulism.  This  cannot  possibly  be  denied ; 
but  mark  what  follows.  It  is  the  peculiarity  of  somnambulism — it 
is  the  differential  quality  by  which  that  state  is  contradistinguished 
from  the  state  of  dreaming — that  we  have  no  recollection,  when  we 
awake,  of  what  has  occurred  during  its  continuance.  Consciousness 
is  thus  cut  in  two ;  memory  does  not  connect  the  train  of  con- 
sciousness in  one  state  with  the  train  of  consciousness  in  the  other. 
When  the  patient  again  relapses  into  the  state  of  somnambulism,  he 
again  remembers  all  that  had  occurred  during  every  former  alterna- 
tion of  that  state  ;  but  he  not  only  remembers  this,  he  recalls  also 
the  events  of  his  normal  existence  ;  so  that,  whereas  the  patient  in 
his  somnambulic  crisis  has  a  memory  of  his  whole  life,  in  his  wak- 
ing interval  he  has  a  memory  only  of  half  his  life.  At  the  time  of 
Locke,  the  phenomena  of  somnambulism  had  been  very  little  studied; 
nay,  so  great  is  the  ignorance  that  prevails  in  this  country  in  regard 
to  its  nature  even  now,  that  you  will  find  this,  its  distinctive  cha- 
racter, wholly  unnoticed  in  the  best  works  upon  the  subject.  But 
this  distinction  you  observe  is  incompetent  always  to  discriminate 
the  state  of  dreaming  and  somnambulism.  It  may  be  true  that  if 
we  recollect  our  visions  during  sleep,  this  recollection  excludes  som- 
nambulism, but  the  want  of  memory  by  no  means  proves  that  the 
visions  we  are  known  by  others  to  have  had  were  not  common 

409 


§  501.]       MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

dreams.  The  phenomena,  indeed,  do  not  always  enable  us  to  dis- 
criminate the  two  states.  Somnambulism  may  exist  in  many  differ- 
ent degrees  ;  the  sleep-walking  from  which  it  takes  its  name  is  only 
one  of  its  higher  phenomena,  and  one  comparatively  rare.  In 
general,  the  subject  of  this  affection  does  not  leave  his  bed,  and  it 
is  then  frequently  impossible  to  say  Avhether  the  manifestations  ex- 
hibited are  the  phenomena  of  somnambulism  or  of  dreaming.  Talk- 
ing during  sleep,  for  example,  may  be  a  symptom  of  either,  and  it 
is  often  only  from  our  general  knowdedge  of  the  habits  and  predis- 
positions of  the  sleeper,  that  we  are  warranted  in  referring  this 
effect  to  the  one  and  not  the  other  class  of  phenomena.  We  have, 
however,  abundant  evidence  to  prove  that  forgetfulness  is  not  a  de 
cisive  criterion  of  somnambulism.  Persons  whom  there  is  no  reason 
to  suspect  of  this  affection,  often  manifest  during  sleep  the  strongest 
indications  of  dreaming,  and  yet,  when  they  awaken  in  the  morning, 
retain  no  memory  of  what  they  may  have  done  or  said  during  the 
night.  Locke's  argument,  that,  because  we  do  not  always  remem- 
ber our  consciousness  during  sleep,  we  have  not,  therefore,  been 
always  conscious,  is  thus  on  the  ground  of  fact  and  analogy  dis- 
proved."^ 

§  501.  Prof.  Jessen,  of  Hombeim,  near   Kiel,  a  distinguished 
practical  alienist,  gives  the  following:  — 

"  On  a  wintry   morning,  between  five  and   six  o'clock,  I  was 

aroused,  as  I  thought,  by  the  head  nurse,  who  reported 
Statement  ,11  r  ,•     ^  ^ 

of  Prof.  to  me  that  some  people  had  come  tor  one  ot  the  male 
patients,  and  who  at  the  same  time  asked  me  wdiether  I 
had  any  particular  orders  to  give.  I  replied  that  the  patient  might 
depart,  and  after  he  had  left  the  room  I  turned  around  to  go  to  sleep 
again.  All  at  once  it  struck  me  that  I  had  previously  not  heard 
anything  regarding  the  intended  departure  of  this  patient,  but  that 
only  the  prospective  departure  of  a  woman  of  the  same  name  had 
been  reported  to  me.  This  compelled  me  to  inquire  more  particu- 
larly after  the  circumstances,  and  accordingly  I  lighted  a  candle, 
rose,  dressed  myself,  and  Avent  to  the  room  of  the  head  nurse.  To 
my  surprise  I  found  him  only  half  dressed,  and,  in  reply  to  my  in- 
quiry after  the  people  Avho  had  called  for  the  patient,  he  said,  with 
an  expression  of  astonishment,  that  he  did  not  know  anything  of  it, 

•  Lectures  on  Metaphysics,  p.  262. 

410 


DEPRESSION.  [§  503. 

as  he  had  hut  just  left  his  hed,  and  no  one  had  called  on  him.  This 
answer  did  not  arouse  mj  consciousness,  hut  I  rejoined  that  then 
the  steward  must  have  been  in  my  room,  and  that  I  should  accord- 
ingly go  to  see  and  ask  him  regarding  the  matter.  When  descend- 
ing a  few  steps  in  the  middle  of  the  corridor  which  led  to  the  room, 
of  the  steward,  I  suddenly  became  conscious  of  having  dreamed 
only  wdiat  until  that  moment  I  had  believed  to  be  an  experience 
whose  reality  I  had  not  doubted  in  the  least." 

III.    MENTAL  UNSOUNDNESS  AS  AFFECTING   THE  TEMPERAMENT.^ 

1.  Depression? 

§  502.  By  this  term  may  be  designated  a  condition  of  despon- 
dency which  continues  for  a  long  time,  even  for  years.  Depression 
without  assuming  the  form  of  real  aberration  of  mind,    "^^^^^jti^^ 

but  which  derives  peculiar  importance  and  significance    stage  to 

.        insanity. 

in  matters  of  penal  jurisprudence,  from  the  fact  that  m^ 

such  cases  a  criminal  act  often  introduces  the  transition  to  patent 

insanity,  inasmuch  as  it  makes  its  appearance  as  the  first  decisive 

symptom,  which  is  rapidly  followed  by  others. 

§  503.    To  Morel  we  are  indebted  for  the  following  sketch  of 

primitive  or  simple  depression.^    As  there  exists  a  mania   yjg^g  of 

which  shows  itself  rather  in  insanity  of  action  than  of   Morel  op 

.  t^is  topic, 

mind  (manie  instinctive),  so  likewise  there  exists  a  state 

of  melancholy  without  delirium.  Without  our  often  being  able  to 
instance  other  causes  than  those  phenomena  Avhich  accompany  the 
change  from  adolescence  to  puberty,  from  puberty  to  age,  and  from 
mature  age  to  the  critical  period  ;  at  these  critical  periods  of  life, 
we  feel  a  vague  weariness,  a  motiveless  fear,*  an  indefinable  sad- 
ness, which  sometimes  is  only  transitory,  and  at  others  is  the  start- 
ing point  of  the  most  serious  disturbances.  It  is,  says  Guislain,  a 
state  of  sadness,  of  dejection  accompanied  with  or  without  the 
shedding  of  tears,  without  any  notable  aberration  of  imagination. 


'  See  Ettides  Medico-Psychologiques  1851,    §    109  ;    Siebold,  Lelirbuch   der 

sur  I'Alienation  Mentale,  par  L.  F.  E.  Gericht.  Med.     Berlin,  1847,  §  200. 

Renaudin,  chapter  II.   p.  36.      Paris,  ^  Trait6    theorique    et   pratique   des 

1854.  Maladies  Mentales,  par  M.  Morel,  tome 

2  See  Krahmer,    Handbuch  der  Ge-  i.  p.  386.     Paris,  1852. 
richt.  Med.  Halle,  C.  A.  Schwetschke, 

411 


§  505.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

intelligence,  or  feeling.  The  heart  apparently  is  the  seat  of  the 
disease ;  but  soon  the  malady  shows  itself  in  a  prostration  of  all 
the  intellectual  powers,  a  state  which  absorbs  all  individual  energy, 
and  appears  to  leave  only  the  capacity  of  suffering.  There  are  few 
who  have  not  experienced  these  painful  feelings  for  a  time  ;  and  if 
by  an  effort  of  reasoning  we  are  able  to  af&x  the  form  of  continuity 
to  these  sensations,  we  will  have  a  correct  idea  of  this  intolerable 
state. 

§  504.  When  a  like  condition,  adds  Guislain,  is  accompanied 
with  anxieties,  groaning,  sobs,  a  desire  to  commit  suicide,  or  any 
other  determination,  it  is  no  longer  in  its  simplest  state. 
He  proceeds  to  argue  that  depression  can  continue  in  connection 
with  the  above-mentioned  tendencies.  How  else,  he  asks,  could  we  ex- 
plain those  suicides  without  reason,  those  irregular  actions  of  Avhich 
we  see  so  many  examples  in  instinctive  mania,  the  affection  which, 
above  all  others,  has  the  closest  relation  to  melancholy  ?  In  the 
greater  number  of  cases,  these  forms  are  distinguishable  less  per- 
haps by  the  diversity  of  the  acts  than  by  the  nature  of  the  depres- 
sive principles.  We  may  readily  admit  that  instinctive  maniacs 
generally  betray  themselves  by  more  capricious  deeds,  and  by  more 
sudden  and  more  cruelly  energetic  and  destructive  determinations, 
than  the  simple  hypomaniacs,  who  rather  turn  against  themselves 
their  fatal  homicidal  impulses.  In  the  first  case,  also,  the  depravity 
of  the  instincts  is  often  more  connected  with  the  organic  affections, 
a  vicious  education,  or  a  prior  state  of  immorality,  whilst  in  the 
latter  class  the  impulse  which  the  patients  themselves  deplore  is  the 
harder  to  be  understood,  because  (1)  the  individual  is  generally 
placed  in  the  most  favorable  social  condition  ;  (2)  his  education  has 
left  nothing  to  be  wished  for,  and  (8)  his  past  history  would  never 
cause  the  actions  to  which  he  is  irresistibly  forced  in  this  unfortu- 
nate unhealthy  state  to  be  expected. 

§  505.  "Depression  of  mind,"  says  Reid,  "  may  be  owing  to 
melancholy,  a  distemper  of  the  mind  which  proceeds  from 

Of  Reid.  1  p    1 

the  state  of  the  body,  which  throws  a  dismal  gloom  upon 
every  object  of  thought,  cuts  all  the  sinews  of  action,  and  often 
gives  rise  to  strange  and  absurd  opinions  in  religion,  or  in  other 
interesting  matters.  Yet,  where  there  is  real  worth  at  the  bottom, 
some  rays  of  it  will  break  forth  even  in  this  depressed  state  of 
mind.  A  remarkable  instance  of  this  was  exhibited  in  Mr.  Simon 
412 


DEPRESSION.  [§  506.   ■ 

Brown,  a  dissenting  clergyman  in  England,  who,  by  melancholy, 
was  led  into  the  belief  that  his  rational  soul  had  gradually  decayed 
within  him,  and  at  last  was  totally  extinct.     From  this  belief  he 
gave  up  his  ministerial  function,  and  would  not  join  with  others  in 
any  act  of  worship,  conceiving  it  to  be  a  profanation  to  worship 
God  without  a  soul.     In  this  dismal   state  of  mind  he  wrote  an 
excellent  defence  of  the  Christian  religion  against  Tindal's  '  Chris- 
tianity as  Old  as  the  Creation.'    To  the  book  he  prefixed  an  epistle, 
dedicatory  to  Queen  Caroline,  wherein  he  mentions  '  that  he  was 
once  a  man,  but,  by  the  immediate  hand  of  God  for  his  sins,  his 
very  thinking  substance  has,  for  more  than  seven  years,  been  con- 
tinually wasting  away,  till  it  is  wholly  perished  out  of  him,  if  it  be 
not  utterly  come  to  nothing;'  and,  having  heard  of  her  majesty's 
eminent  piety,  he  begs  the  aid  of  her  prayers.     The  book  was  pub- 
lished after  his  death  without  the  dedication,  which,  however,  having 
been  preserved  in  manuscript,  was  afterwards  printed  in  the  '  Ad- 
venturer.'    Thus  this  good  man,  when  he  believed  that  he  had  no 
soul,  showed  a  most  generous  and  disinterested  concern  for  those 
who  had  souls.     As  depression  of  mind  may  produce  strange  opin- 
ions, especially  in  the  case  of  melancholy,  so  our  opinions  may  have 
a  very  considerable  influence  either  to  elevate  or  depress  the  mind, 
even  Avhere  there  is  no  melancholy.     Suppose,  on  one  hand,  a  man 
who  believes  that  he  is  destined  to  an  eternal  existence  ;  that  He 
who  made  and  Avho  governs  the  world  maketh  an  account  of  him, 
and  hath  furnished  him  with  the  means  of  attaining  a  high  degree 
of  perfection  and  glory.     With  this  man  compare,  on  the  other 
hand,  the  man  who  believes  nothing  at  all,  or  who  believes  that  his 
existence  is   only  the  play  of  atoms,  and  that  after  he  has  been 
tossed  about  by  blind  fortune  for  a  few  years,  he  shall  again  return 
to  nothing.     Can  it  be  doubted  that  the  former  opinion  leads  to 
elevation  and  greatness  of  mind,  and  the  latter  to  meanness  and 
depression  ?"* 

§  506.    "A  pleasant  season,"  says  Dr.  Rush,  "a  fine  day,  or 
even  the  morning  sun,  often  suspends  the  disease.     Mr.    depression 
Cowper,  who  knew  all  its  symptoms  by  sad  experience,    is  often  in- 
bears  witness  to  the  truth  of  this  remark,  in  one  of  his 
letters  to  Mr.  Haly.    '  I  rise,'  says  he,  '  cheerless  and  distressed, 

•  Reid  on  the  Active  Powers  of  Opinion,  p.  576. 

413 


§  508.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

and  brigliten  as  the  sun  goes  on.'  Its  paroxysms  are  sometimes 
denoted  '  low  spirits.'  Tliey  continue  from  a  day,  a  week,  a  month, 
a  season,  to  a  year,  and  sometimes  longer.  The  intervals  differ — 
1,  in  being  accompanied  with  preternatural  high  spirits;  2,  in  being 
attended  with  remissions  only  ;  and,  3,  with  intermissions,  or,  in 
other  words,  in  correctness  and  equanimity  of  mind.  The  extremes 
of  high  and  low  spirits,  which  occur  in  the  same  person  at  different 
times,  are  happily  illustrated  by  the  following  case  :  A  physician 
in  one  of  the  cities  of  Italy  was  once  consulted  by  a  gentleman  who 
was  much  distressed  with  a  paroxysm  of  this  intermitting  state  of 
hypochondriacism.  He  advised  him  to  seek  relief  in  a  convi\dal 
manner,  and  recommended  him  in  particular  to  find  out  a  gentleman 
of  the  name  of  Cardini,  wdio  kept  all  the  tables  in  the  city,  to  which 
he  was  occasionally  invited,  in  a  roar  of  laughter.  'Alas!  sir,'  said 
the  patient,  with  a  heavy  sigh,  'I  am  that  Cardini.'  Many  such 
characters,  alternately  marked  by  high  and  low  spirits,  are  to  be 
found  in  all  the  cities  in  the  world. "^ 

§  507.  In  cases  of  settled  depression,  the  patient  on  the  one 
hand  is  fully  convinced  that  his  notions  and  wishes  ought  to  be 
realized ;  but  on  the  other  he  feels  the  impossibility  of  effecting 
their  realization.  He,  therefore,  makes  no  effort  to  render  possible 
the  impossible  ;  yet  he  cannot  resign  the  ideal,  which  he  bears  in 
his  bosom;  he  loves  his  fictions,  or  the  objects  of  his  Avishes  so 
much,  that  he  cannot  part  with  them.  Thus  he  consumes  his 
existence  in  a  monotonous  grief ;  he  cannot  take  interest  in  any- 
thing except  the  object  of  his  sadness.^ 

2.  Hypocliondria} 

§  508.  When  the  morbid  despondency  noticed  under  the  last 
head  extends  to  the  general  tone  of  bodily  sensations,  a  condition 

'  Rush  on  the  Mind,  pp.  82,  83.  1854.     See  also  on  this  point  the  fol- 

2  Ranch's  Psychology,  151.  lowing  works  :  Confessions  of  a  Hypo- 

3  See  Krahmer,  Handbuch  der  Ge-  chondriac,  or  the  Adventures  of  a 
richt.  Med.  Halle,  C.  A.  Schwetschke,  Hypochondriac  in  search  of  Health, 
1851,  §  109  ;  Siebold,  Lehrbuch  der  Saunders  &  Otley,  London,  1849  ;  Re- 
Gericht.  Med.  Berlin,  1747,  §  208.  See  view  of  same,  Journ.  of  Psychol.  Med. 
De  I'Hypochondrie  et  du  Suicide,  par  vol.  iii.  p.  1.  See  also  an  article  in  20 
J.   P.  Palfret,  Paris,  1822;   Renaudiu  Am.  Pract.  19. 

sur  I'Alienation  Mentale,  p.  99,  Paris, 

414 


HYPOCHONDRIA.  [§  509. 

is  produced  which  vfe  commonly  call  liypoeliondria.     In    Hypochon- 
the  inferior  stages  the  patient  retains  sufficient  self-control    gt"te  of 
to  conceal  if  not  foro-et  his  condition,  and  proceed  un-   ^otaide- 

°    _  '  r  pressiou. 

hindered  in  his  occupations  ;  but  in  the  higher  degrees 

he  becomes  so  absorbed  in  his  bodily  sensations  as  to  exhibit  it  in 
his  appearance  and  conduct,  disregarding  every  eifort  made  to  raise 
his  spirits,  and  reducing  all  his  reflections  to  the  common  machinery 
of  personal  questions  and  answers.^  As  this  sort  of  selfishness 
increases,  the  mind  is  often  filled  with  envy,  hatred,  bitterness, 
suspicion,  and  revenge  towards  others,  and  particularly  towards 
those  in  whom  the  patient  believes  himself  to  detect  a  want  of 
sympathy,  or  even  of  respect,  or  whom  he  regards  as  the  authors 
of  his  distress.  The  result  of  this  is  too  apt  to  be  a  series  of  unjust 
surmises  and  accusations,  personal  ill-treatment  of  others,  and  even 
murderous  threats  and  assaults  against  the  supposed  wrong-doers, 
as  well  as  the  commission  of  suicide.  In  the  judicial  scrutiny  and 
consideration  of  such  a  case,  it  is  essential  to  inquire  how  far  and 
for  what  length  of  time  the  attention  of  the  patient  can  be  directed 
from  his  bodily  feelings  to  other  objects ;  what  is  his  personal 
opinion  of  his  own  condition  ;  wdiether  any,  and  if  any  what,  insane 
ideas  possess  his  mind,  and  what  is  his  general  demeanor.  Where 
the  perceptive  faculty  is  not  so  far  involved  in  the  progress  of 
the  disease  as  to  falsify  the  impressions  of  the  senses,  and  deprive 
the  consciousness  of  the  power  of  correcting  them,  the  defendant, 
for  reasons  we  have  already  given,  is  to  be  held  responsible  ;  but 
the  judge  in  passing  sentence  will  nevertheless  take  into  account 
the  morbid  impulse  which  was  a  subsidiary  cause  in  the  commission 
of  the  crime. ^ 

§  509.  The  following  description  of  the  hypochondriacal  charac- 
ter is  to  be  found  in  the  Mddecine  Legale  de  M.  Orfila.^   ^ 

.  ...  Description 

"Hypochondriacs  are  distinctively  remarkable  for  their    of  hypo- 
exaggerated  fears  upon  the  state  of  their  health,  and  the 
foolish  ideas  they  give  utterance  to  in  expressing  their  sufferings. 
Their  temper  is  very  unequal ;    they  pass  almost  without  motive 
from  hope  to  despair,  from  grief  to  gayety,  from  bursts  of  pas- 

'  Ellinger,  p.  105.  views  in  Scliilrmayer,  Gericht.  Med.  § 

2  Supra,  §§  125  etseq.     See  the  above     542. 

»  Tome  i.  p.  416.     Paris,  1848. 

415 


§  510.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

sion  to  gentleness,  from  laughter  to  tears  ;  many  are  timid,  pusil- 
lanimous, fearful,  morose,  irascible,  restless,  hard  to  please,  a  tor- 
ment and  fatigue  to  every  body.  They  are  easily  moved  ;  a  trifle 
vexes  and  agitates  them,  producing  fears,  torments,  and  attacks  of 
despair.  The  greater  number  show  a  marked  change  in  their 
affections  ;  they  are  egotistical ;  the  slightest  motives  cause  them  to 
pass  from  attachment  to  indifference  or  to  hate.  They  are  often 
susceptible  of  an  exaltation  or  depression  of  spirits,  of  a  rapid 
succession  of  the  most  opposite  ideas  and  emotions,  without  the 
will  being  able  to  control  the  thought. 

"  But  those  thus  affected  have  a  very  good  judgment  in  whatever 
relates  to  their  own  interests,  and  generally  in  everything  which 
is  foreign  to  their  health,  unless  the  disease  should  end  in  a  total 
loss  of  reason,  a  thing  which  is  of  very  rare  occurrence.  The 
peculiar  characteristics  above  described  render  hypochondriacs  more 
likely  to  yield  to  fear,  and  more  easily  moved  to  contract  engage- 
ments ;  and  the  faintest  suggestions  of  danger  exercise  considerable 
influence  upon  their  mind.  Finally,  the  jealous,  suspicious,  irritable, 
headstrong  character  of  hypochondriacs  would  be  an  extenuating 
circumstance,  if,  under  a  first  impulse,  they  should  commit  a  repre- 
hensible act." 

§  510.  "  The  hypochondriac,  constantly  preoccupied  with  his 
afiiictions,  seeks  by  every  possible  means  to  analyze  them.  He 
often  feels  his  pulse,  examines  his  tongue  and  his  excretions,  and 
frequently  discovers  in  these  investigations  causes  for  fear  or  hope, 
which  he  sometimes,  though  the  details  may  be  very  disgusting, 
takes  a  sort  of  pleasure  in  communicating  to  every  body.  The 
great  desire  to  be  cured  induces  him  frequently  to  change  his  phy- 
sician and  his  treatment.  He  seeks  for  instruction  by  reading 
medical  books,  and  often  changes  his  opinion  regarding  the  nature 
of  his  malady,  inasmuch  as  he  applies  to  his  own  case  all  which  he 
reads  or  hears  of.  The  mere  mention  of  a  disease  is  sufficient  to 
start  the  notion  that  he  himself  labors  under  it ;  and,  influenced  by 
this  idea,  he  now  discovers  in  the  corresponding  organs  phenomena 
which  he  had  never  before  experienced. 

"  But  not  always  is  it  the  fear  simply  of  ordinary  bodily  dis- 
eases which  occupies  the  attention  of  the  hypochondriac  and  is  the 
object  of  his  anxiety.  Frequently  the  mental  element  in  his  ma- 
lady does  not  escape  his  notice,  and  the  complete  change  of  his 
416 


HYPOCHONDRIA.  [§  511. 

personality,  the  possession  by  morbid  sensations  and  ideas,  espe- 
cially, however,  a  certain  anomaly  particularly  in  the  mental 
sphere,  in  the  sensorial  sensations,  whereby  these,  although  per- 
ceived as  formerly,  no  longer  produce  the  same  impressions,  fre- 
quently form  the  great  subject  of  his  complaint.  This  last  and 
very  remarkable  state,  which  the  patients  themselves  have  much  diffi- 
culty in  describing,  which  we  also  have  ourselves  observed  in  several 
cases  as  the  predominant  and  most  lasting  symptom,  is  as  well  as 
possible  described  in  the  following  letter  of  one  of  Esquirol's  patients. 

"  I  still  continue  to  suifer  constantly  ;  1  have  not  a  moment  of 
comfort,  and  no  human  sensations.  Surrounded  by  all  that  can 
render  life  happy  and  agreeable,  still  to  me  the  faculty  of  enjoy- 
ment and  of  sensation  is  wanting — both  have  become  physical  im- 
possibilities. In  everything,  even  in  the  most  tender  caresses  of 
my  children,  I  find  only  bitterness.  I  cover  them  with  kisses,  but 
there  is  something  between  their  lips  and  mine ;  and  this  horrid 
something  is  between  me  and  all  the  enjoyment  of  life.  My  exist- 
ence is  incomplete.  The  functions  and  acts  of  ordinary  life,  it  is 
true,  still  remain  to  me  ;  but  in  every  one  of  them  there  is  some- 
thing wanting — to  wut,  the  sensation  which  is  proper  to  them,  and 
the  pleasure  which  follows  them,  ,  .  .  Each  of  my  senses, 
each  part  of  my  proper  self,  is  as  it  were  separated  from  me,  and 
can  no  longer  afford  me  any  sensation;  this  impossibility  seems  to 
depend  upon  a  void  which  Ifeel  in  the  front  of  my  head,  and  to  be 
due  to  the  diminution  of  the  sensibility  over  the  whole  surface  of 
my  body,  for  it  seems  to  me  that  I  never  actually  reach  the  objects 
which  I  touch.  I  feel  well  enough  the  changes  of  temperature  on 
my  sMn,  but  I  no  longer  experience  the  internal  feeling  of  the  air 
when  I  breathe  .  .  .  m,y  eyes  see  and  my  spirit  j^erceives, 
but  the  sensation  of  that  which  1  see  is  completely  wanting,''^  etc,^ 

§  511,    That   hypochondria,  in  its    simple   and  primary  forms, 
does  not  juridically  divest  the  sufferer  of  responsibility, 
will  be  admitted  when  we  recall  the  long  number  of  pa-   ^ria  does°" 
tients,  some  of  them  among  the  most  active  and  useful   "°*  destroy 

,  ,  ,  ,  responsibi- 

members  of  society,  whom,  if  this  position  be  accepted,    lity  unless 
it  would  be  necessary  to  sequestrate  at  once  in  a  lunatic    cated  and 
asylum.      But  there  are  cases  of  aggravated  and  com-   ^ssravated. 

»  Griesinger's  Mental  Pathol.  Syden.  ed.  (1867)  §  114, 

VOL.  I.— 27  417 


§  512.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

plex  hypochondria  when  the  patient  can  be  no  longer  considered  a 
moral  agent,  and  when  it  becomes  necessary  to  strip  him  of  his 
business  capacity,  and  to  place  him  under  restraint.  Leurot  men- 
tions, for  instance,  a  hypochondriac  who  sold  his  farm,  placing  the 
produce  in  the  funds,  so  as  to  be  relieved  from  care — whose  inces- 
sant attention  was  bestowed  on  his  health — whose  sole  occupations 
were  "  ennui"  and  sleep — who  at  last  would  not  make  the  effort  of 
undressing  himself,  sat  constantly  in  a  half-darkened  room,  and 
who,  in  his  absorbing  sense  of  misery,  seemed  to  lose  taste,  smell, 
and  motion.  A  still  more  acute  case  is  given  by  Morel,  where  the 
patient's  intrusive  misery  was  such  that  his  demands  for  sympathy 
from  his  mother  and  sisters,  and  the  nervous  vehemence  with 
which  he  forced  his  griefs  upon  them,  operated  to  destroy  their 
health.  Of  course,  when  hypochondria  reaches  such  a  pitch  as 
this,  sequestration  is  necessary  to  the  welfare  both  of  the  patient 
and  of  his  friends. 

§  512.  Nor  should  it  be  forgotten  that  hypochondria  often  is 

complicated  with  other  forms  of  psychical  disease  by 
compii-  which  responsibility  is  suspended.  Thus  with  hypochon- 
other  dis-  driacs  illusions  of  personal  danger  often  intervene  ;  and 
dimfmsh-  these  illusions  are  complex  and  occasionally  overwhelm- 
ing respon-  injr.  Sometimes  the  sufferer  is  watched  by  an  evil 
sibility.  ^  .  .       .       ,         .     .  .  "^ 

eye.  Sometimes  he  is  the  victim  of  witchery,  magnet- 
ism, or  poison.  Sometimes  honor,  reputation,  liberty,  are  imperilled 
by  a  hostile  conspiracy.  An  Orange  Irishman,  for  instance,  some 
years  back,  in  Philadelphia,  conceived  himself  to  be  in  danger  of 
his  life  from  a  conspiracy  of  Roman  Catholics.  He  in  consequence 
killed  one  of  his  supposed  assailants ;  and,  though  there  was  too 
strong  evidence  of  design  on  his  part,  and  too  clear  proof  of  his 
consciousness  of  the  illegality  of  the  act,  to  permit  his  acquittal, 
yet  the  penal  sentence  imposed  by  the  court  was  commuted  by  the 
goveriior  to  banishment.  And  it  is  possible  to  conceive  cases  of 
hypochondriacal  delusions  of  such  a  nature  that  a  person  committing 
an  offence  under  their  influence  may  think  he  is  doing  not  wrong 
but  right.  In  such  case  responsibility  for  the  particular  act  does 
not  juridically  exist. ^ 

'  Supra,  §  125. 

418 


HYPOCHONDRIA.  [§  515. 

§  513.  Sometiraes,  as  we  are  told  by  Dr.  Rush,  the  pain  of  a 

bodily  disease  suspends,  for  a  short  time,  the  mental  dis-   Distress  of 

tress.     Mr.  Boswell,  in  his  life  of  Dr.  Johnson,  relates  a   ^°^y  ^f*^"^ 
'  _  '  may  relieve 

story  of  a  London  tradesman  who,  after  making  a  large  distress  of 
fortune,  retired  into  the  country  to  enjoy  it.  Here  he 
became  deranged  with  hypochondriasis,  from  the  want  of  employ- 
ment. His  existence  finally  became  a  burden  to  him.  At  length 
he  was  afilicted  with  the  stone.  In  a  severe  paroxysm  of  this  dis- 
ease a  friend  sympathized  with  him.  "No,  no,"  said  he,  "don't 
pity  me,  for  what  I  now  feel  is  ease  compared  with  the  torture  of 
mind  from  which  it  relieves  me." 

§  514.  Dr.  Haindorft,  in  his  German  translation  of  Dr.  Reid's 
"  Essay  on  Hypochondriasis,"  in  alluding  to  the  possi-   g    ^^^^ 
bility  of  a  patient  laboring  under  hypochondriasis  being    dria  may 
able,  by  an  exercise  of  the  power  of  volition,  to  control   trolled  by 
his  morbid  sensations,  justly  observes,  "  We  should  have 
fewer  disorders  of  the  mind  if  we  could  acquire  more  power  of  voli- 
tion, and  endeavor  by  our  own  energy  to  disperse  the  clouds  which 
occasionally  arise  within  our  own  horizon  ;  if  we  resolutely  tore  the 
first  threads  of  the  net  which  gloom  and  ill-humor  may  cast  around 
us,  and  made  an  effort  to  drive  away  the  melancholy  images  of  a  mor- 
bid imagination  by  incessant  occupation.     How  beneficial  would  it 
be  to  mankind  if  this  truth  were  universally  acknowledged  and  acted 
upon,  viz.  that  our  state  of  health,  mental  as  well  as  bodily,  prin- 
cipally depends  upon  ourselves!" 

"  By  seeming  gay  we  grow  to  wliat  we  seem," 

It  was  the  remark  of  a  man  of  great  observation  and  knowledge  of 

the  world,  "  Only  wear  a  mask  for  a  fortnight,  and  you  will  not 

know  it  from  your  own  face."^ 

§  515.  A  French  writer  mentions  the  case  of  a  rich  peasant  who 

was  possessed  with  the  idea  that  he  was  bewitched,  and   ^^  ,. 

who  complained  to  his  medical  attendant  that  seven  devils   peiied  by 
,.,,.,.,,  ^  deception, 

had  taken  up  their  abode  m  his  body.     "  feeven,  not 

more  ?"    was  the  physician's  inquiry.      "  Only  seven,"  was  the 

reply.     The  physician  promised  him  to  rid  him  of  the  visitors,  one 

each  day,  upon  condition  that  for  the  first  six  he  was  paid  twenty 

francs,  but  for  the  seventh,  who  was  the  chief  of  the  band,  forty. 

'  Winslow  on  Suicide,  pp.  169,  170. 

419 


§  5l7.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

The  patient  agreed,  and  Avas  subjected  by  the  physician,  who  set 
apart  the  fee  for  charity,  to  a  series  of  daily  shocks  from  the 
Leyden  jars,  the  seventh  and  last  of  which  was  so  powerful  as  to 
produce  a  fainting  fit  in  the  supposed  demoniac,  who,  however, 
awoke  from  it  entirely  freed  from  his  delusion/ 

§  516.  Burns  suffered  much  from  indigestion,  producing  hypo- 
chondria. Writing  to  his  friend,  Mr.  Cunningham,  he  says:  "Canst 
thou  not  minister  to  a  mind  diseased  ?  Canst  thou  speak  peace  and 
rest  to  a  soul  tossed  on  a  sea  of  troubles,  without  one  friendly  star 
to  guide  her  course,  and  dreading  that  the  next  surge  may  over- 
whelm her?  Canst  thou  give  to  a  frame,  tremblingly  alive  to  the 
tortures  of  suspense,  the  stability  and  hardihood  of  a  rock  that 
braves  the  blast?  If  thou  canst  not  do  the  least  of  these,  why 
wouldst  thou  disturb  me  in  my  miseries  with  thy  inquiries  after 
me  ?"  From  early  life,  the  poet  was  subject  to  a  disordered 
stomach,  a  disposition  to  headache,  and  an  irregular  action  of  the 
heart.  He  describes,  in  one  of  his  letters,  the  horrors  of  his  com- 
plaint :  "  I  have  been  for  some  time  pining  under  secret  wretched- 
ness. The  pang  of  disappointment,  the  sting  of  pride,  and  some 
wanderino-  stabs  of  remorse,  settle  on  my  life  like  vultures,  when 
my  attention  is  not  called  away  by  the  claims  of  society,  or  the 
vagaries  of  music.  Even  in  the  hour  of  social  mirth,  my  gayety  is 
the  madness  of  an  intoxicated  criminal  under  the  hands  of  an  ex- 
ecutioner. My  constitution  was  blasted,  ah  origine,  with  a  deep, 
incurable  taint  of  melancholy  that  poisoned  my  existence. "^ 

3.  Hysteria.^ 

§  517.  Hysteria,  which  only  attacks  individuals  of  the  female 
sex,  or  males  having  a  feminine  organization,  resembles 
much  like  hypochondria  in  its  mental  and  moral  symptoms ;  but  the 
epilepsy.  nauseous  and  painful  feelings  manifest  themselves  in  con- 
vulsions, and  the  alternation  between  the  different  states  of  feeling 
is  far  more  abrupt.^ 

Hysteria  presents  the  same  difficult  complications  as   epilepsy. 

'  Annales  Med.  Psyc,  1847.  Handbuch  der  Gericlit.  Med.  Halle,  C. 

2  Winslow  on  Suicide,  147.  A.  Schwetsclike,  1851,  §  110. 

3  Siebold,    Lelirbuch    der    Gericht.  *  Scliiirmayer,  Gericht.  Med.  §  543 ; 
Med.,  Berlin,  1847,   §  208;  Krahmer,  Krahmer,  Handbucb  de  Gericht.  Med. 

Halle,  C.  A.  Schwetschke,  1851,  §  109. 
420 


HYSTERIA.  [§  519. 

Psychical  disease  may  either  be  intermingled  with,  or  entirely 
absorb,  physical.  Sometimes  the  mental  type  may  be  that  of 
ecstasy ;  sometimes  that  of  profound  terror-stricken  anguish,  influ- 
encing the  patient  to  abnormal  if  not  illegal  acts. 

§  518.  Liman^  mentions  as  psychical  symptoms  of  hysteria,  irri- 
tability ;  impressionability ;  want  of  psychical  energy  symptoms 
and  positiveness  ;  thraldom  to  physical  and  psychical  im-  of  hysteria. 
pressions ;  capriciousness ;  rapid  change  of  mood  on  little  or  no 
cause  ;  inclination  to  deceit,  falsehood,  exaggeration,  and  simula- 
tion; propensity  to  the  odd,  the  eccentric,  the  evil,  and  the  unworthy, 
coupled  with  sharp  intelligence.  These  psychical  traits,  he  men- 
tions, are  to  be  f^und,  more  or  less  pronounced,  in  connection  both 
with  the  intermittent  and  the  remittent  corporeal  symptoms  of  those 
suffering  Avith  hysteria  ;  and  these  symptoms  often,  either  in  their 
own  course,  or  in  concurrence  with  other  causes,  mature  into  an 
insanity  whose  actions  are  progressively  more  and  more  Avild,  and 
in  which  self-control  is  ultimately  lost.  The  erotic  element,  accord- 
ing to  Liman,  exhibits  itself  in  this  disease  with  much  less  frequency 
than  is  generally  supposed.  On  the  other  hand,  Morel  calls  atten- 
tion to  the  well-substantiated  fact  that  patients  of  these  classes  some- 
times tenaciously  cherish  delusions  and  hallucinations  that  they  have 
been  the  subject  of  sexual  wrongs  from  others  (e.  g.,  rape,  abor- 
tion, impregnation) ;  and  detail  the  circumstances  of  such  wrongs 
with  a  consistency  and  exactness  which,  in  those  unacquainted  with 
the  patient's  condition,  secure  belief. 

§  519.  With  this  may  be  mentioned  cases  of  intense  domestic 
irritability,  resulting  in  quarrels  at  home,  and  sometimes,  as  Liman 
mentions,  in  disputes  with  and  rapid  changes  of  medical  attendants. 
The  excitement  is  more  intense  at  the  cataraenial  period,  and  sub- 
sides during  the  intervals.  So,  also,  with  regard  to  admissions 
into  and  dismissal  from  asylums,  which  may  rapidly  alternate. 
These  patients  are  the  peculiar  annoyances,  so  speaks  this  experi- 
enced observer,  of  such  institutions.  Nothing  is  acceptable  to 
them  but  the  past  and  the  impossible  ;  the  present  and  the  attain- 
able are  the  causes  of  petulant  disgust.  Yet  they  are  peculiarly 
subject  to  discipline.  If  this  discipline  can  be  firmly  maintained, 
they  may  be  controlled,  if  not  cured. 

'  Liman's  Casper,  1871,  p.  443. 

421 


§  521.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLT. 

§  520.  The  foro-psychical  question  in  such  cases  is,  are  the  sense 

of  right,  and  the  power  to  do  what  is  right,  destroyed  ? 

may  pro-      No  doubt  is  there  that  in  hysteria  there  sometimes  exist 

^ions  affect-   ^^^^^  psychical  illusions  as  make  it  necessary  to  answer 

ing  respon-   this  question  in  the  affirmative.     Patients  afflicted  with 
sibility.  ^  •  i         i 

this  disease,  we  are  told  by  the  experienced  and  accurate 
observers  who  have  been  just  cited,  sometimes  believe,  not  merely 
that  they  have  lost  hand,  eye,  or  ear,  but  that  they  are  poisoned, 
or  subjected  to  great  indignities,  which,  if  the  delusion  be  sincere, 
they  would  naturally  endeavor  to  resent.  Yet  the  difficulty  here 
arises  from  the  tendency,  sometimes  epidemic,  sometimes  sporadic, 
in  this  class  of  patients  to  simulate.  Any  symptom  which  would 
increase  personal  importance,  or  draw  attention,  or  excite  sympathy, 
if  not  felt,  will  be  feigned.  No  one  who  attends  such  patients  but 
will  be  struck,  indeed,  with  the  fecundity  with  which  new  symp- 
toms will  be  created  when  old  ones  have  lost  their  effect.  Hence  it 
is  that  in  hysteria  there  should  be  close  scrutiny  applied  to  all  cases 
dependent  on  the  sincerity  of  such  delusions.  No  doubt,  wherever 
it  appears  that  a  delusion  is  sincere,  the  patient  is  not  responsible 
for  an  act  committed  under  its  stress.  But  in  view  of  the  fact  that 
hysteria  is  fomented  by  indulgence — in  view  of  the  danger  to  the 
community  which  would  I'esult  from  the  emancipation  of  such  pa- 
tients from  penal  control — in  view  of  the  injury  to  which  they 
would  themselves  be  subjected  if  they  were  as  a  class  to  be  removed 
from  the  sphere  of  liberty  tempered  by  law  to  that  of  confinement 
in  lunatic  asylums,  under  whose  restraints  it  would  be  necessary  to 
place  persons  so  emancipated — hysteria  itself  cannot  be  juridically 
regarded  as  suspending  moral  agency  unless  mental  unsoundness  as 
an  independent  state  be  substantively  proved. 

§  521.  Attacks  of  hysteria,  although  in  appearance  bearing  con- 
siderable analogy  to  those  of  epilepsy,  rarely  produce  a 
of  hysteria  State  of  Complete  insensibility,  and,  although  they  may 
exclude  ^^^^  longer,  they  never  leave  behind  them  final  bewilder- 
responsi-  ment  of  mind.  However  frequently  they  may  occur, 
they  hardly  ever  produce  mania  or  dementia,  and  there- 
fore they  rarely  exclude  responsibility.^ 

'  Briand,  Med.  LSg.,  p.  569, 

422 


MELANCHOLIA.  [§  523. 

§  522.  Hysteria  is  described  by  Dr.  Maudsley,^  in  his  lectures 
(London,  1870),  as  sometimes  exhibiting  itself  in  acute 
maniacal  excitement,  with  great  restlessness,  rapid  and  ley's  de- 
disconnected  and  yet  not  entirely  incoherent  conversa-  ^y"teri°  °^ 
tion  sometimes  tending  to  the  obscene,  and  perversity  of 
conduct  more  or  less  incoherent  and  seemingly  wilful.  "  With  the 
perverted  sensations  and  disordered  movements  there  is  always 
some  degree  of  moral  perversion.  This  increases  until  it  swallows 
up  the  other  symptoms  ;  the  patient  loses  more  and  more  of  her 
energy  and  self-control,  becoming  capriciously  fanciful  about  her 
health,  imagining  or  feigning  strange  diseases,  and  keeping  up  the 
delusion  or  the  imposture  with  a  pertinacity  that  might  seem  in- 
credible, getting  more  and  more  impatient  of  the  advice  and  inter- 
ference of  others,  and  indifferent  to  the  interests  and  duties  of  her 
position.  Outbursts  of  temper  become  almost  outbursts  of  mania, 
particularly  at  the  menstrual  periods.  An  erotic  tinge  may  be  ob- 
servable in  her  manner  of  behavior  ;  and  occasionally  there  are 
quasi-ecstatic  and  cataleptic  states.  It  is  an  easily  curable  form  of 
derangement  if  the  patient  be  removed  in  time  from  the  anxious  but 
hurtful  sympathies  and  attentions  of  her  family,  and  placed  under 
good  moral  control ;  but,  if  it  be  allowed  to  go  unchecked,  it  will 
end  in  dementia,  and  it  is  especially  apt  to  do  so  when  there  is  a 
marked  hereditary  disposition. "^ 

Hysteria,  as  an  element  in  what  is  called  religious  insanity,  is 
hereafter  discussed.^ 


4.  Melancholia. 


§  523.   Melancholia  may  be  defined  as  settled  and  continuous 
depression.     In  its  higher  degrees,  the  various  gloomy  and  morbid 

1  See  also  Dr.  Hammond's  Diseases  to  that  species  of  melancholy  which  is 
of  the  Nervous  System,  N.  Y.,  1881,  most  affected  by  the  weather  and  by 
and  authorities  cited  under  this  head,  other  depressing  circumstances.     This 

2  Body  and  Mind,  London,  1870,  p.  term  has  been  seriously  adopted  by 
79.  Siebold,  Gericht.  Med.  §  212,     Melan- 

3  Infra,  §  676.  cholia  Anglica,  sive  Autochira.    Fr.  B. 
*  Siebold,    Lehrbuch    der    Gericht.      Osiander,  in  his  interesting  volume  on 

Med.,  Berlin,  1847,  §  208.   Dr.  Cheyne,     Suicide,    discusses     the     same    topic, 
rather  jocularly  than   otherwise,  ap-     Hannov.,  1813,  8,  §  207 
plied  the  term,  "The  English  Malady," 

423 


§  523.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

Meiancho-     feelings  are  accompanied  by  distinct  imaginings,  which 
lia  is  settled     ,1,1.1  ,        f  1  ,,•■•■  ^  ■   ^ 

and  con-        take  their  character  irom  the  sort  01  agitation  in  which 

presskm^^'  the  disease  commenced,  the  general  opinions  and  cha- 
racter of  the  individaal,  the  pursuits  which  last  occupied 
him,  and  the  trials  to  which  he  may  have  been  subject.^  For  all 
these  feelings  the  patient  seeks  explanations,  and  finds  them  either 
in  himself  {inelancliolia  concentrica),  or  in  surrounding  things  and 
circumstances  Qmelancholia  periplierica) .  In  the  former  case  he 
takes  himself  severely  to  task  for  small  or  inconsiderable  errors,  or 
declares,  with  an  air  of  sincere  conviction,  that  he  has  committed 
great  crimes,  as  murder,  etc.,  and  has  incurred,  by  his  inexpiable 
fault,  the  displeasure  of  God  and  of  the  world,  and  eternal  damna- 
tion. In  melancliolia  reJigiosa  such  suiferers  ask  to  be  tried  and 
punished  ;  they  complain  of  the  loss  of  what  is  most  dear  to  them, 
apprehend  poverty  for  themselves  and  their  families  in  the  future, 
or  even  imagine  themselves  possessed  by  demons.  In  melancholia 
dcemonica,  they  accuse  other  persons  of  malevolence  and  persecu- 
tion, to  which  they  ascribe  their  ailments.  It  is  characteristic  of 
this  phase  of  disease,  that  the  patient  never  sees  surrounding  things 
as  they  are,  but  always  in  a  light  corresponding  to  his  gloomy  frame 
of  mind  ;  frequently,  also,  this  false  coloring  turns  into  a  real  illu- 
sion of  the  senses,  particularly  in  the  peripheric  form,  which  is  the 
reason  that  it  so  frequently  ends  in  lunacy.  The  external  conduct 
of  the  patients,  the  manner  in  Avhich  they  execute  the  dictates  of 
their  wills,  is  very  various.  In  melancholia  attonita  they  sit  motion- 
less and  speechless ;  in  other  cases,  they  can  hardly  find  words 
enough  to  depict  their  distress  ;  sometimes  they  are  perpetually  in 
motion — melancholia  aetiva  et  errabunda.  In  peripheric  melan- 
choly they  scold  and  swear  about  their  grievances,  become  noisy 
and  excited,  and  resert  to  violent  means  of  resistance  or  revenge. 
In  this  manner,  melancholy  often  becomes  the  occasion  of  mur- 
derous assaults,  and  sometimes  murders  of  the  most  cruel  kind,  as 
well  as  of  suicide  .2 

•  Scliiirmayer,  Gericht.  Med.  §  544;  of  periodic  melancholy,  The  Med.  Rec, 

compare  Ellinger,  p.  108  ;  Lee^ous  Cliu-  Aug.  14,  1875.     For  articles  on  suicide 

iques  surl'Alifination  Mentale  ;  Falret,  see  Proceedings  of  N.  Y.  Med.  Leg.  Soc. 

Le^on  7th,  p.  185.  Paris,  1854.  Etudes  (N.  Y.  1872),  pp.  1-37, 

Medico-Psychologiques  sur  I'Alienation  2  T^g  above  summary  is  taken  from 

Mentale.   L.  F.  E.  Renaudin,  chap.  iv.  Schiirmayer,  Gericht.  Med.  §  544. 
p.  178,     Paris,  1854,     See,  for  a  case 

424 


MELANCHOLIA.  [§  524. 

§  624.  Melancholia,  or  "Alienation  partielle  depressive,"  as  it 
has  been  called  by  Falret,  has,  as  its  name  indicates,  for 

....      1      1  ,      •    ,.  -,  •  1  ^     Character- 

its  principal  characteristic,  a  depression,  sloAvness  and   jgtics  of 

prostration  of  all  the  faculties  united  with  general  anx-  Jj^eiancho- 
iety.  This  fundamental  disposition  of  the  sensibility  and 
intelligence  produces,  in  the  greater  number  of  those  thus  affected, 
a  crowd  of  analogous  consequences.  Everything  is  viewed  by  them 
in  a  distorted  light ;  all  their  relations  with  the  external  world  are 
changed  ;  they  look  upon  everything  with  repulsion  and  antipathy  ; 
they  bear  with  difficulty  the  kindest  remarks  of  their  relations  and 
friends,  and  consolation  itself  irritates  them.  In  entire  contradic- 
tion to  nature,  the  patient  cannot  retire  within  himself.  He  finds 
nothing  within  but  anxiety,  doubt,  and  mistrust,  both  of  himself 
and  others.  Everything  seems  changed  around  him.  He  is  often 
afflicted,  and  sometimes  irritated  by  it,  and  thinks  the  alteration 
due  to  those  that  surround  him,  rather  than  to  any  personal  change. 
Thence  come  irritation,  anger,  and  violence,  against  himself  and 
others.  He  then  abandons  the  world  that  injures  him,  and  sinks 
into  complete  inactivity. 

Frequently  it  is  not  only  against  the  world  in  general,  but  against 
his  best  friends,  that  the  patient  directs  his  suspicions,  his  mistrusts, 
and  his  hatred.  To  this  general  state  of  depression,  anxiety  and 
gloominess  succeed.  After  this  comes  both  a  physical  and  moral 
prostration,  in  which  there  is  more  or  less  complete  suspension  of 
sensibility  and  intelligence.  Whilst  the  sensibility  is  thus  op- 
pressed and  affected,  the  will  is  equally  enfeebled,  inactive,  and 
powerless. 

The  physiognomy  is  concentrated  and  anxious,  expressing  dulness 
and  stupidity,  followed  by  habitual  and  sometimes  entire  silence, 
and  slowness  of  movement  carried  sometimes  to  immobility.  These 
external  signs  correspond  with  the  internal  condition  we  have  just 
described,  and  form  an  exact  picture  of  this  kind  of  mental  disease. 

Among  the  sufferers  of  this  class,  some,  feeling  a  general  anxiety, 
think  they  have  done  a  bad  action,  have  committed  a  crime,  sup- 
pose themselves  reserved  for  severe  punishments,  both  in  this  world 
and  the  other,  and,  overwhelmed  with  scruples,  they  criminate 
themselves  for  the  most  innocent  actions  of  their  lives,  or  imagine 
themselves  possessed  by  the  devil  and  abandoned  of  God.  Others, 
in  consequence  of  the  sentiment  of  mistrust  which  controls  them, 

425 


§  525.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSTCHOLOaiCALLY. 

imagine  themselves  to  be  surrounded  by  spies  or  invisible  enemies, 
and,  according  to  their  previous  ideas,  their  education,  or  the  age 
in  which  they  live,  tliink  themselves  under  the  power  of  sorcery, 
magic,  magnetism,  the  police,  etc.  Others,  entirely  wrapped  in 
their  sadness,  think  themselves  ruined,  accused,  dishonored,  or  even 
betrayed  by  their  relations  and  friends.  In  a  word,  the  delirious 
ideas  which  become  the  centre  of  the  greater  part  of  the  preoccu- 
pations of  the  intelligence  and  of  the  feelings,  and  which  appear, 
at -first  sight,  to  constitute  all  the  delirium,  are  in  reality  only  the 
relief  to  the  general  condition  which  gives  birth  to  them.  In  spite 
of  their  infinite  variety,  they  all  partake  of  the  general  character 
of  the  disease. 

There  is  not,  then,  in  melancholy,  as  has  often  been  asserted,  a 
concentration  of  the  attention,  or  even  of  all  the  moral  and  intellec- 
tual powers,  upon  one  sad  idea,  but  a  general  state  of  sadness  and 
depression  which  shapes  itself  in  one  predominant  idea,  and  mani- 
fests itself  by  a  crowd  of  other  morbid  phenomena.^ 

§  525.  Melancholia  is  apt  to  arise  in  men  from  excessive  sexual 
indulgence  or  self-abuse  ;  in  women  from  derangement 
due  to  of  the  menstrual  functions.     This  is  peculiarly  the  case 

causes  ^^^'^  ^^^^  revolution  of  the  system  which  accompanies  a 

cessation  of  menstruation.  There  are  in  this  state  "  all 
sorts  of  anomalous  sensations  of  bodily  distress,  attesting  the  dis- 
turbance of  circulation  and  of  nerve  functions  ;  and  it  is  now  that 
an  insane  jealousy  and  a  propensity  to  stimulants  are  apt  to  appear, 
especially  when  there  have  been  no  children.  When  positive  insan- 
ity breaks  out,  it  usually  has  the  form  of  profound  melancholia, 
with  vague  delusions  of  an  extreme  character,  as  that  the  world  is 
in  flames,  that  it  has  turned  upside  down,  that  everything  is  changed, 
or  that  some  very  dreadful  but  undefined  calamity  has  happened 
or  is  about  to  happen.  The  countenance  has  the  expression  of  a 
vague  terror  and  apprehension.  In  some  cases,  short  and  transient 
paroxysms  of  excitement  break  the  melancholy  gloom.  These 
usually  occur  at  the  menstrual  periods,  and  may  continue  to  do  so 
for  some  time  after  the  function  has  ceased. "^ 

'  See  Leejons   Clinique  sur  I'Aliena-  London,    1870.     See   also   Dr.    Luke's 

tion  Mentale,  de  M.  Falret.     Lecjon  9.  Insanity  of  Pregnancy,  Puerperal  In- 

Paris,  1854.  sanity,  and  Insanity  of  Lactation  ;  and 

2  Body  and  Mind,  by  Dr.  Maudsley,  Dr.  Storer's  Insanity  in  Women. 

426 


MELANCHOLIA.  [§  527. 

§  526.  In  some  phases  of  this  disease,  the  motives  are  not  pres- 
ent to  the  consciousness,  and  the  act  is  committed  in  a     , 

May  pro- 
state of  mental  confusion,  preceded   sometimes   by  the    duce  men- 

almost  imperceptible  symptoms  of  silent  depression,  gion  and " 
sometimes  by  the  traces  broad  and  deep  of  havoc  in  the  c^^t^^V^^^' 
affective  faculties,  and  accompanied  often  by  a  sudden 
loss  of  self-control,  visible  paroxysms  of  terror,  and  a  fancied  pur- 
suit by  fiends.^  The  transition  from  melancholy  to  mania  is  open 
to  the  simple  explanation,  that  melancholia  is  the  first  stage  of 
psychical  disease  in  general,  and  contains  within  itself  the  germs  of 
all  other  phases. ^ 

§  527.  In  other  cases  there  is  also  an  absence  of  conscious  mo- 
tives, but  in  their  place  an  uncontrollable  restlessness,  an 
indistinct  but  overaAving  feeling  of  dread,  and  an  incess-  opment  of 
ant  morbid  approach  of  those  abnormal  moral  propensi-  impulses, 
ties  which  will  be  considered  under  the  next  head. 
EUinger  correctly  observes,^  that  "  impulses  of  this  kind  often  ex- 
cite the  most  desperate  struggles  in  the  mind ;  evoke  the  most 
various  external  means  to  overcome  them ;  place  the  murderous  in- 
strument into  the  hands  of  the  individual,  from  which  reason  wrests 
it  again  ;  drive  him  again  into  solitude  and  far  from  the  subject  of 
the  mad  desire,  and  induce  him  to  give  warning  to  the  threatened 
victim,  to  plan  and  to  attempt  suicide  ;  and,  when  at  last  the  fatal 
deed  is  nevertheless  accomplished,  there  is  a  calmness  and  a  clear- 
ness in  the  manner  in  which  he  anticipates  the  impending  punish- 
ment, which  to  an  unpractised  observer  must  exclude  every  idea  of 
an  underlying  mental  derangement.  Such  subjects  either  betray 
the  ordinary  symptoms  of  depression,  or  only  those  incident  to  the 
specific  propensity,  which  throws  the  consciousness  into  a  state  of 
distraction,  and  fills  the  mind  with  fear  and  dread.  In  either  case, 
the  impulse  whether  preceded  or  not  by  a  brief  relaxation,  comes 
suddenly,  in  which  case  it  will  be  found  in  connection  with  disturb- 
ances of  the  bodily  functions,  among  which  may  be  enumerated 
cessation  of  the  natural  period  or  of  other  natural  or  ordinary 
evacuations,  rush  of  blood  to  the  head,  exhaustion  by  loss  of  blood, 
protracted  nursing,  excesses,  epilepsy,  approach  of  severe  attacks 
of  sickness.     The  immediate  oGC&sion  of  the  act  may  be  the  view  of 

»  Ellinger,  p.  112.  3  Ellinger,  p.  114. 

2  Schiirmayer,  Gericht.  Med.  §  545. 

427 


§  529.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

a  naked  figure,  the  sight  of  an  execution,  of  blood,  of  a  murderous 

instrument  or  other  means  of  committing  crimes,  or  the  recital  of 

such  an  occurrence  ;  the  ultimate  cause  is  found,  according  to  Ideler, 

in  the  associations  of  feelings  and  desires  according  to  their  contrast, 

and  the  struggle  and  contradiction  thus  arising," 

§  528.  In  still  another  order  of  cases,  as  we  are  told  by  Schiir- 

mayer,  the  consciousness  is  not  only  in  full  possession  of 
Or  con- 
scious  acts     the  motives,  but  the  act  is  conceived  on  the  ground  of  a 

haihicina-^    chain  of  reasoning  and  executed  with  a  degree  of  arrange- 

tions  or  de-  j^gnt  and  circumspection  apparently  inseparable  from  a 
lusions.  '^  ^  ^  ''  ^        _ 

clear  state  of  the  understanding.  Here,  as  will  be  seen 
more  fully  hereafter,  the  motives  are  sometimes  hallucinations,  par- 
ticularly of  the  ear  (voices  heard),  which  give  commands  to  the 
madman,  sometimes  a  wish  to  die  without  the  courage  to  commit 
suicide  directly,  but  with  the  design  of  incurring  capital  punish- 
ment by  the  murder  of  others  (persons  the  subject  of  an  old  grudge, 
or  such  as  are  entirely  innocent,  as  children)  ;  sometimes  the  notion 
that  the  destruction  of  the  world  is  at  hand,  or  that  a  terrible  mis- 
fortune impends,  against  Avhich  it  was  necessary  to  protect  the  ob- 
ject of  particular  affection,  which  is  best  effected  by  death.  Under 
such  circumstances,  as  will  presently  be  more  fully  seen,  suicide,  or 
self-inculpation,  is  common,  and  sometimes  a  vindictive  feeling 
against  the  supposed  authors  of  the  person's  suffering,  which  the 
mind  often  debates  with  itself  for  a  length  of  time,  until  all  doubt 
is  removed  by  some  new  hallucination. 

§  529.  This  brings  us  to  the  cases,  to  which  reference  has  been 
Homicide  elsewhere  made,^  of  suicide,  or  of  the  homicide  of  chil- 
or  suicide      dren,  under   the   influence   of   deep  mental  depression. 

under influ-  .  ,.  .        ,  „  , 

ence  of  de-  The  patient  s  condition  becomes  one  of  hopeless  melan- 
piession.  choly.  The  most  terrible  calamities  he  believes  to  be 
gathering  over  himself  and  those  whom  he  loves.  Life,  if  it  con- 
tinues, will  be  to  them  misery  unutterable,  incomparable.  Death, 
under  such  circumstances,  is  a  blessing.  To  invite  it  he  considers 
a  duty,  and  to  kill  his  children,  and  then  himself,  the  highest 
office  of  self-sacrificing  love.  This  state  has  been  well  termed 
Precordial  Anguish.  It  has  been  so  abundantly  and  unequivocally 
illustrated  that  as  to  its  existence  there  can  be  no  doubt.     In  addi- 

>  See  §§  155,  529,  636,  and  Appendix  to  3d  ed.  of  this  work   §§  837,  839,  842. 
428 


MELANCHOLIA.  [§  530. 

tion  to  the  cases  already  given,  may  be  mentioned  that  of  the  father, 
referred  to  by  Casper,  who,  before  killing  his  children  under  the 
influence  of  this  feeling,  shook  hands  with  them  and  caressed  them, 
as  if  on  the  eve  of  a  solemn  and  tender  sacrifice  which  was  to  re- 
lease them  from  all  their  cares. 

§  530.  One  peculiar  phenomenon  sometimes  connected  with  this 
state  has  been  noticed  by  psychologists.  Between  the 
resolution  and  the  performance  of  the  terrible  act  the  preceded 
mind  of  the  patient  becomes  preternaturally  calm.  The  of  c^^f^n*^ 
tumult  and  terror  which  preceded  the  purpose  have  sub- 
sided. There  may  be  even  a  sort  of  ecstasy  in  the  relief  from  the 
agitation  which  had  attended  the  prior  conflict  between  affection  in 
its  lower  and  what  is  believed  to  be  afi"ection  in  its  higher  stage. 
This  peculiarity,  indeed,  is  common  to  sanity  as  well  as  insanity. 
When  we  have  been  torn  by  conflicting  motives  as  to  the  duty  of 
any  particular  step,  and  at  last  have  come  to  a  determination,  even 
though  this  determination  has  been  caused  by  the  preponderance  of 
a  mere  straw,  then  unrest  is  succeeded  by  rest,  and  our  sole  care  is 
that  the  pm-pose  be  duly  executed.  Such  periods  of  lull,  and  of 
quiet  and  calm  preparation,  have  been  sometimes  observed  in  those 
who,  under  the  influence  of  melancholy,  have  been  parties  to  the 
fearful  acts  which  have  just  been  noticed.  It  has  been  hence  super- 
ficially inferred  that  they  were  at  the  time  sane.  But  the  lull  is 
no  proof  that  there  has  not  been  a  prior  unloosening  of  the  stays  of 
sanity.  All  the  fastenings  of  the  mental  mechanism  may  have  been 
previously  removed.  The  machine  may  run  for  awhile  longer  with 
apparent  ease,  but  the  crash  will  eventually  come,  as  in  an  engine 
whose  rivets  have  been  withdrawn.  Yet  this  unsoundness  is  not  to 
be  presumed.  The  mind's  prior  perturbations,  the  shocks  to  which 
it  may  have  been  previously  subjected,  its  congenital  or  hereditary 
weaknesses — these  must  be  proved.  But  when  these  are  shown  in 
such  a  way  as  to  establish  melancholia  as  a  disease,  the  calmness 
which  immediately  preceded  the  act  must  not  be  treated  as  proof  of 
sane  design.  From  insanity  this  state  of  lull  issued,  and  to  insanity 
it  will  revert.^ 

'  See,  as  illustrating   this    interme-  melancliolia,    in    whom,    prior   to   the 

diate  intelligence,  two  cases  mentioned  act,  the    same  calmness  was    noticed, 

by  Brierre  de  Boismont,  in  the  Annales  See,    for    this    point   viewed    legally, 

d'Hygiene,    pub.    1863.       Dr.    Liman  supra,  §§  140-162. 


speaks  of  "hundreds"  of  suicides  in 


429 


MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 


CHAPTER  V. 

MENTAL  UNSOUNDNESS  AS  AFFECTING  THE  MORAL  SENSE. 


I.  General  "Moral  Insanity." 

"Moral  insanity"  repugnant  to  sound 
psycliology,  §  531. 

Depends  upon  false  assumptions,  §  532. 

Mental  and  moral  functions  not  separa- 
ble, §  533. 

Thouglit  necessary  to  all  action,  §  534. 

Ambiguity  of  terms,  §  538. 

Reason  and  moral  sense   are  interde- 
pendent, §  539. 

Burden  on  those  who  set  up  moral  in- 
sanity, §  540. 

1.  Authorities  in  the  affirmative. 

Ellinger  and  Pinel,  §  541. 

Esquirol,  §  542. 

Gall,  §  543. 

Prichard,  the   originator   of  the  term, 
§  544. 

In  later  times,  Ray,  §  545. 

Carpenter,  §  546. 

Morel,  §  547. 

Campagne,  §  548. 

Brierre  de  Boismont,  §  549. 

Mittermaier  has  been  incorrectly  cited 
as  approving  this  view,  §  550. 

Its  most  consistent  advocate  is  Prosper 
Despine,  §  551. 

2.  Present  weight  of  authority  is  in  the 
negative. 

On    the    negative    side   are    Heinrich 
Leubuscher,  and  Gray,  §  552. 

Schiirmayer  and  Wiuslow,  §  553. 

And  Mayo,  §  554. 

Analysis  by  Dr.  Gray,  §  555. 

Criticism  by  Griesinger,  §  556. 

By  McFarland,  §  557. 

By  Jules  Falret,  §  558. 

430 


By  Workman,  §  559. 

And  repudiated  by  the  Association  of 

Superintendents   for   the   Insane,  § 

561. 
So  by  Liman,  §  562. 
German    law   opposed    to   doctrine   of 

moral  insanity,  §  563. 
Kraflft-Ebing's  tests  for  moral  insanity, 

§  564. 
Convicts  only  rarely  insane,  §  565. 

II,  Special  "Moral  Monomanias." 

1.  At  present  repudiated. 

Doctrine  of  special  moral  monomanias 
assumes  a  subdivision  of  "moral 
insanity,"  §  567. 

This  doctrine  disproved  by  former  rea- 
soning, §  568. 

Additional  authorities  :  Ideler,  §  569. 

Kraflft-Ebing,  §  570. 

Casper,  Griesinger,  and  Liman,  §  571. 

2.  Psychological  absurdity  of  classification. 

Analysis  should  be  subjective  and  not 
objective,  §  572. 

Classification  of  the  "moral-insanity" 
theorists  not  harmonious,  §  573. 

Defects  of  classification,  §  574. 

III.  Prominent  Forms  of  Supposed 

Monomania. 
1.  Homicidal  mania. 
Its  distinctive  features,  §  578. 
Approved  by  Ray,  §  579. 
Tests  suggested  by  him,  §  580. 
Supposed  instances  of  homicidal  mania, 

§  581. 
Maudsley  maintains  that  this  mania  is 
distinctive,  §  583. 


MENTAL    UNSOUNDNESS  AFFECTING    THE   MORAL   SENSE. 


Manias  not  irresistible,  §  585. 

Mania,  if  existing    at  all,  is  general, 
not  special,  §  586. 

No  defence  when  reason  exists,  §  588. 
2.  Kleptomania. 

Analysis  by  Ellinger,  §  590. 

Illustrations,  §  591. 

No  defence  when  reason  continues,  § 
592. 

Proof  cases  indicate  general  insanity, 
§  593. 

Value  of  article  stolen  not  necessarily 
an  element,  §  596. 

Criticism  of  Kraflft-Ebing,  §  597. 

Unreasonableness    does   not   prove  in- 
sanity, §  598. 

Kleptomania  not  a  proof  of  insanity, 
§  602. 

3.  Pyromania. 

Pyromania  a  symptom  of  insanity,  § 
604. 

Ray's  opinion,  §  605. 

Disapproved  in/bro  judicio,  §  606. 

Checks  proposed  by  Hencke,  §  606  a. 

Opinion  of  Griesinger  that  pyromania 
is  impossible,  §  607. 

So  Krafft-Ebing,  §  608. 

Statistics  on  subject  disprove  the  mania 
theory,  §  609. 

Doctrine  has   arisen   from  misconcep- 
tion of  experts,  §  610. 

But  pyromania  may  be  a  symptom  of 
insanity,  §  611. 

Insanity  must  be  shown  to  make  it  a 
defence,  §  612. 

Analysis  of  cases  by  Flechner  disprov- 
ing doctrine  of  pyromania,  §  615. 

Juridically  and  psychologically  "pyro- 
mania" has  no  existence,  §  616. 
4.  Erotomania. 

Sexual    passion    distinct    from    other 
natural  instincts,  §  617. 

Irresponsible  sexual  insanity  impossi- 
ble, §  618. 

Views  of  those  in  favor  of  the  doctrine, 
§  619. 

Responsibility  ceases  when  act  is  the 
result  of  physical  causes,  §  620. 


Instances  of  morbid  erotic  impulses, 
§  621. 

But  these  must  proceed  from  general 
insanity,  or  else  could  be  resisted, 
§  622. 

5.  Pseudonomania. 

Unreasonable  to  consider  this  a  dis- 
tinct mania,  §  626. 

The  habit  is  voluntary,  §  627. 

Even  insane  are  responsible  for  volun- 
tary untruths,  §  628. 

Habit  does  not  create  irresponsibility, 
§  629. 

6.    Oiheiomania. 
Prichard's  description  of  this  "mania," 

§  630. 
Domestic   perversity   often    associated 

with  social  urbanity,  §  631. 
Instances  of  this  "mania,"  §  633. 
Oikeiomania  not  a  distinct  mania  and 

cannot  create  irresponsibility  in  the 

insane,  §  635. 

7.   Suicidal  mania. 

Suicidal  propensity  consistent  with 
sanity,  §  636. 

Not  always  a  symptom  of  insanity, 
§  637. 

8.  Dipsomania. 

Periodic  craving  for  liquor  not  an  un- 
common disease,  §  639. 

But  "  dipsomania"  not  a  distinct  form 
of  insanity,  §  640. 

Analogy  with  other  appetites,  §  641. 

A  physical  not  a  moral  disease,  §  642. 

9.   Fanatico -mania. 
(a)    Supernatural  or  pseudo-supernatural 
demoniacal  possession. 
(a')   Such  possession  a  priori  impossible, 

§  644. 
(6' )   Solvahilitij  of  this  evidence  hi/  natu- 
ral tests. 
(«2)  Disease.       Brain    influenced     by 

stomach,  §  646. 
(h^)   Morbid   imitative   sympathy.      Hys- 
terical   emotions   often  become   epi- 
demic, §  647. 

431 


§  532.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


Most  cases  of  siipernatural  possession 
really  hj^sterical,  §  648. 

Instances  of  morbid  epidemics,  §  649. 

(c^)  Legerdemain  and  fraud.  Appa- 
rently inexplicable  occurrence  often 
mere  deception,  §  651. 

So  in  supposed  supernaturalism,  §  652. 

(d^)  Mistake  of  senses.  Supposed  ap- ' 
paritibn  often  due  to  mistake  of 
senses,  §  654. 

Or  optical  delusion,  §  655. 

(e^)  Knowledge  attributed  to  dreams 
probably  procured  from  other 
sources,  §  656. 

Supernatural  presentiment  often  an 
awakening  of  memory,  §  657. 

Memory  independent  of  corporeal  con- 
ditions, §  658. 

(/2)  Natural  jjhenoniena  at  present  in- 
explicable. 

Sucli    are    "ecstasies"    and   magnetic 
phenomena,  §  659. 
(c')  Historical  evidence  of  such  posses- 
sion. 

Belief  in  demonology  taught  by  ancient 
philosophers,  §  660. 

Conflict  of  opinion  as  to  authority  of 
New  Testament  on  the  subject,  §  661. 


Demoniacal   possession   does   not  now 
exist,  §  661a. 

(b)  Religious  insanity. 

(a')    Christianity/  taken   in  its  practical 
sense  has  no  tendency  to  produce  in- 
sanity, §  662. 
Philosophical    necessity    and    liberta- 

rianism,    neither   inconsistent   with 

reason,  §  664. 
Religion  conducive  to  sanity,  §  665. 

(6')   What  is  called  religious  insanity  is 
produced — 
(a^)    By   a   departure    from   practical 

Christianity,  §  669. 
By  appeal  to  unscriptural  supernatu- 
ralism, §  670. 
Desire    for    sympathy    often    becomes 

chronic  and  hysterical,  §  675. 
Selfishness  a  germ  of  hysteria,  §  676. 
(b^)  By  constitutional    idiosyncrasies, 

§677. 

(c)  Fanatico-mania  as  a  dfence. 
Cannot  per  se  confer   irresponsibility, 

§  678. 

10.  Politico-mania. 
Politico-mania  no  defence,  §  681. 


I.    GENERAL  "MORAL  INSANITY." 

§  531.  The  doctrine  of  "Moral  Insanity" — i.e.  supposed  insanity 
"Ml  ^^  ^^®  moral  system  coexisting  with  sanity  of  the  mental 
Insanity"      — ];ias    been    already    examined   in   its   legal    relations, 

repugnant  .  .  ,  . 

to  sound  and  has  been  shown  to  he  incompatible  not  only  with 
psyc  o  ogy  ^^^  reported  decisions  of  the  courts,  but  with  the 
principles  of  philosophic  penal  jurisprudence.^  It  remains  now  to 
demonstrate  that  this  doctrine  is  equally  repugnant  to  sound  psy- 
chology. 

§  532.  The  coexistence  of  mental  sanity  with  an  alleged  moral 
insanity  is,  as  will  at  once  be  seen,  essential  to  the  independent 
existence  of  this  supposed  phase  of  diseased  irresponsibility.  We 
must  therefore  exclude,  from  the  category  of  distinctive  "  moral 


>  See  supra,  §§]  62-189. 


432 


GENERAL   MORAL   INSANITY.  [§  533. 

insanity,"  all  those  cases  in  which  the  mind  is  insane.    To  establish 
this  hypothesis,  therefore,  the  following  points  must  be  proved:  — 

First,  that  the  moral   and   mental   functions  are  so 
separable  that  one  can  be  insane  without  involving  the   upon°faise 

XI  assump- 

"'^"®^-  _         _  tions. 

Secondly,  that  this  severance  actually  exists  in  the 
cases  which  are  vouched  as  establishing  moral  insanity. 

Thirdly,  that,  even  supposing  such  severance,  the  peculiar  con- 
dition of  morals  that  thus  is  assumed  confers  irresponsibility. 

The  third  of  these  points  has  been  already  discussed,  it  being 
peculiarly  a  proposition  of  law.^  The  first  and  second  we  will  now 
examine. 

§  533.  Sir  William  Hamilton,  to  repeat  a  citation  already  made, 
in  defining  the  mind,  says :  "  If  we  take  the  mental 
to  the  exclusion  of  material  phenomena,  that  is,  the  moral  func- 
phenomena  manifested  through  the  medium  of  self-con-  ggp^^j-rbie. 
sciousness  or  reflection,  they  naturally  divide  themselves 
into  three  categories  or  primary  genera  :  the  phenomena  of  Jcnow- 
ledge  or  cognition,  the  phenomena  of  feeling  or  of  pleasure  and 
pain,  and  the  phenomena  of  conation  or  of  will  and  desire.''^  Mr. 
Bain,  belonging  to  a  very  different  school,  arrives,  as  we  have  pre- 
viously seen,  substantially  at  the  same  result.^  "The  only  account 
of  mind  strictly  admissible  in  scientific  psychology  consists  in  speci- 
fying three  properties  or  functions — -feeling,  will  or  volition,  and 
thought  or  intellect,  through  which  all  our  experience,  as  well  ob- 
jective as  subjective,  is  built  up.  This  positive  enumeration  is 
what  must  stand  for  a  definition."  He  proceeds  to  say  that 
"  FEELING  includes  all  our  pleasures  and  pains,  and  certain  modes 
of  excitement,  or  of  consciousness  simply,  that  are  neutral  or  indif- 
ferent as  regards  pleasure  and  pain.  The  pleasures  of  warmth, 
food,  music,  the  pains  of  fatigue,  poverty,  remorse,  the  excitement 
of  hurry  and  surprise,  the  supporting  of  a  light  weight,  the  touch 
of  a  table,  the  sound  of  a  dog  barking  in  the  distance,  are  feelings. 
The  two  leading  divisions  of  the  feelings  are  commonly  given  as 

•  See  supra,  §§  163-189.  Seguin,  Dr.  Jewell,  and  Dr.  Folsom,  in 

2  Mental  and  Moral  Science  (2ded.),  the  North.  American  Review  for  Janu- 

London,  1868,  p.  2.     On  this  topic  see  ary,  1882. 

essays  by  Dr.  Elwell,  Dr.  Beard,  Dr. 

VOL.  I.— 28  433 


§  534.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

sensations  or  emotions."  "  Will  or  volition  comprises  all  the 
actions  of  human  beings  in  so  far  as  impelled  or  guided  hy  feelings. 
Eating,  walking,  building,  sowing,  speaking  are  actions  performed 
with  some  end  in  view  ;  and  ends  are  comprised  in  the  gaining  of 
pleasure  or  the  avoiding  of  pain.  Actions  not  prompted  hy  feeling 
are  not  voluntary.  Such  are  the  powers  of  nature — wind,  gravity, 
electricity,  etc. — so  also  the  organic  functions  of  breathing,  circu- 
lation, and  the  movements  of  the  intestines."  "  Thought,  intel- 
lect, intelligence  or  cognition  includes  the  powers  known  as  per- 
ception, memory,  conception,  abstraction,  reason,  judgment,  and 
imagination.  It  is  analyzed,  as  will  be  seen,  into  three  functions, 
called  discrimination  or  consciousness  of  difference,  similarity  or 
consciousness  of  agreement,  and  retentiveness  or  memory.  The 
mind  can  seldom  operate  exclusively  in  any  one  of  these  three  modes. 
A  feeling  is  apt  to  be  accompanied  more  or  less  by  will  and  by 
thought.  When  we  are  pleased,  our  will  is  moved  for  continu- 
ance or  increase  of  the  pleasure  (will) ;  we  at  the  same  time  dis- 
criminate and  identify  the  pleasure,  and  have  it  impressed  on  the 
memory  (thought)." 

§  534.  Let  us  apply  this  analysis  to  some  of  the  cases  which 
are  adduced  as  illustrations  of  moral  insanity  by  the 
necessary  writers  on  this  specialty.  A  man,  for  instance,  is  as- 
toaiiac-  saulted  by  another,  or  conceives  himself  so  to  be,  so  as 
to  be  in  danger  of  losing  either  life  or  that  which  is 
more  precious  to  him  than  life.  Feeling  is  the  first  function  of 
the  mind  which  is  here  addressed ;  but  this  necessarily  involves 
thought.  "Is  the  assault  intentional?"  "Was  it  designed?" 
"  Can  I  infer,  judging  from  former  assaults,  or  from  what  I  have 
observed  or  heard,  that  it  is  aimed  at  life  ?"  "  Can  it  be  repelled 
in  no  other  way  than  by  killing  the  assailant  ?"  Pursuing  inqui- 
ries such  as  these,  feeling,  guided  by  thought,  directs  the  will 
to  the  particular  object.  Without  thought,  feeling  would  strike 
blindly  into  mere  space.  Even  in  the  lowest  point  of  view,  dis- 
crimination is  needed  to  distinguish  the  victim  from  others,  and 
judgment  to  determine  that  killing  him  is  a  proper  act  of  self-de- 
fence. Thought,  therefore,  is  necessarily  involved  in  the  act  of 
killing,  and  the  killing  takes  place  because  the  assailant  thinks 
it  best.  To  constitute  a  valid  plea  of  derangement  in  such  a  case, 
it  is  necessary  to  show  that  the  perceptive  and  reasoning  powers 
434 


GENERAL   MORAL   INSANITY.  [§  539. 

were  deranged.      Otherwise,  the  case  would  not  differ  from  that  of 
homicide  in  a  sudden  fit  of  rage. 

§  535.  Or  take  the  case  of  "kleptomania."  The  feeling 
which  lies  at  its  base  is  longing  for  some  particular  thing.  But 
to  shape  as  well  as  to  effectuate  this  longing,  thought  must  be  in- 
voked. Thought  is  needed  to  identify  the  object  with  that  which 
previously  gave  gratification  ;  to  distinguish  it  from  other  objects  ; 
to  secrete  it ;  to  carry  it  successfully  away.  In  true  kleptomania, 
so  far  from  the  derangement  being  distinctively  in  the  feeling,  such 
derangement  is  to  be  peculiarly  traced  to  thought  or  intellect.  It 
is  no  mark  of  derangement  on  entering  a  jewelry  store  to  desire  a 
brilliant  that  may  lie  on  the  counter.  But  to  think  either  that  it 
is  right  to  take  it,  or  that  it  can  be  taken  without  disgrace,  assumes 
an  abnormal  and  insane  condition  of  intellect. 

§  537.  The  same  reasoning  applies  to  all  cases  of  alleged  mono- 
mania. A  child  sets  fire  to  a  house  (pyromania).  Here  the  child 
selects  the  particular  house  by  tfiouglit ;  applies  the  match  with 
thought ;  is  determined  to  the  act  by  a  mental  process  on  whose 
sanity  or  insanity  the  question  of  responsibility  depends.  Or 
sexual  propensity  is  yielded  to  without  restraint  (erotomania)  ;  and 
here,  also,  thought,  in  its  lower  phases  of  memory,  distinction,  and 
identification,  is  necessary  to  procure  gratification,  while  in  its 
higher  phase  of  reason  and  sense  of  right,  where  it  exists  it  creates 
responsibility.  This  form  of  insanity,  in  other  words,  cannot  be 
psychologically  shown,  unless  it  affects  thought. 

§538.  The  difficulty  is  that  "moral  insanity,"  in  the  popular 
acceptation  of  the  term,  includes  two  distinct  diseases.  Ambio-uity 
The  first,  following  the  phraseology  of  Bain  and  Hamil-  of  terms, 
ton,  as  just  stated,  is  that  of  enfeebled  or  paralyzed  thought,  ap- 
proaching dementia.  Here,  feeling,  held  in  but  slight  check  by 
the  reasoning  powers,  acts  on  the  will,  involving  thought  only  so 
far  as  is  necessary  to  identify  and  secure  the  object  of  desire.  The 
other  case  is  that  of  delirious  or  deluded  thought,  where  unreal 
objects  are  set  up  for  feeling  to  desire.  But  in  both  cases,  the 
primary  seat  of  the  disease  is  in  thought  and  intellect. 

§  539.  How  unsatisfactory  are  the  analogies  which  are  invoked 
to  explain  this  alleged  separa^e?tfss  of  the  moral  sense.  Reason  and 
will  readily  be  seen.  The  reason,  the  memory,  the  !i'J"'f,j\^!^'^^^ 
moral  sense,  it  is  declared,  are  each  packed  away  in  a   pendent. 

435 


§  539.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

series  of  hermetical  compartments  ;  and,  so  far  from  their  mu- 
tually commingling,  one  may  be  actually  insane  Avithout  the 
others  being  in  any  sense  affected.  Man  is  thus  like  an  iron 
steamboat,  whose  hull  is  divided  into  a  series  of  water-tight  cham- 
bers, so  arranged  that  if  the  rivets  of  one  chamber  loosen,  or  its 
plates  decay,  the  injury  sustained  is  to  itself  alone.  But  it  would 
be  far  more  correct  to  compare  the  ego  to  the  steamer's  machinery, 
in  which  the  derangement  of  one  particular  part  is  the  derangement 
of  the  whole.  Taking  reason  in  its  large  sense,  we  must  all  admit 
that  reason  and  the  moral  sense  are  in  the  highest  degree  inter- 
dependent. Thus,  if  an  act  is  repugnant  to  our  moral  sense,  the 
closest  logical  process  will  fail  to  convince  us  of  its  propriety.  On 
the  other  hand,  waiving  the  question  whether  there  is  such  a  thing 
as  an  innate  moral  sense,  there  is  no  doubt  that  this  function  is  one 
which,  supposing  it  to  be  actually  wanting,  or  naturally  weak,  may 
be  built  up  by  education.^  Dr.  Arnold,  whose  cheerful  temper  and 
whose  liberal  theology  alike  remove  from  him  the  suspicion  of 
pessimism  in  this  relation,  and  whose  experience  was  wide  and 
close,  tells  us  that  in  the  boy  nature  the  moral  sense  is  weak  and 
capricious,  and  that  "  conscience"  as  a  power  is  greatly  developed 
by  education.  He  quotes  with  emphatic  approbation  the  well- 
known  lines : — 

' '  The  old  man  clogs  our  early  years 

And  simple  childhood  comes  the  last."^ 

1  See  particularly  SMjora,  §§115,188-  born  without  reason,  or  possessing  it 
403.  only  to  a  low  degree,  becomes  an  in- 

2  On  this  point  we  have  the  follow-  stance  such  as  we  often  see,  illustrating 
ing  corroborating  remarks  of  Dr.  Mc-  this  point.  The  instincts  of  the  idiot 
Farland  :  "Another  explanation  of  are  low,  and  are  prevented  from  be- 
the  phenomena  termed  moral  insanity  coming  depraved  only  by  the  amount 
should  not  be  lost  sight  of.  We  are  of  reason  which  he  has.  The  small 
apt  to  forget  the  vast  conservative  pow-  degree  of  reason  that  he  possesses  may 
er  of  reason  in  saving  man  from  the  de-  educate  the  faculties  of  fear,  of  censure 
praved  appetites  and  instincts  common  and  punishment,  and  love  of  approba- 
to  him  with  the  brute  creation.  Swift  tion,  and  may  cause  him  to  imitate  his 
has  well  shown  the  humiliation  of  our  superiors  by  a  propriety  of  conduct 
species  when  man's  reason  was  given  that  may  set  him  above  criminal  acts, 
to  the  brute  and  himself  left  without  The  same  power  exerted  over  the  moral 
it.  We  all  remember,  in  the  enter-  propensities  by  the  processes  of  pure 
taining  narrative  of  Captain  Gulliver,  reasoning  is  also  shown  in  the  cases  of 
what  a  sorry  brute  man  becomes  when  children.  Childhood,  notwithstanding 
thus  transformed.      A  human  being,  the  praises  bestowed  on  it  as  tlie  un- 

436 


GENERAL  MORAL  INSANITY.  [§  539. 

Few  acts  are  so  cruel,  few  so  immoral,  he  tells  us,  as  to  shock 
the  moral  sense  of  hoys  steeped  in  the  atmosphere  of  a  puhlic 
school.  He  applies  to  morals,  though  not  in  the  same  words, 
Fichte's  aphorism  as  to  faith  ;  man's  attitude  in  infancy  is  yes  ;  in 
youth,  no  ;  in  maturity,  yes.  The  moral  sense  in  infancy  is  obedi- 
ence ;  in  youth,  chaos ;  in  maturity,  obedience.  As  we  grow  older  and 
wiser  and  more  thoughtful,  a  thousand  things,  at  which  our  moral 
sense  in  youth  would  not  pause,  become  to  us  abhorrent.  And,  if 
moral  sense,  in  its  higher  relations,  be  not  congenital,  a  con- 
sciousness that  there  is  a  law  imposed  on  us  which  will  punish  us  if 
we  do  wrong,  acts  as  a  substitute  which  rises  in  value  precisely  as 
the  law  is  known  to  be  executed  evenly  and  surely.  We  may  take, 
as  illustrating  this,  those  very  criminals  who  are  declared  to  be 
"  destitute"  of  moral  sense  ;  men  who  present  every  test  of  what 
is  called  moral  insanity  ;  men  who  show  no  shame  or  remorse  for 
wrongs  done  by  them,  and  with  whom  the  recollection  of  their 
crimes  is  as  evanescent  as  their  recollection  of  their  daily  meals. 
Yet  even  such  men  are  arrested,  when  concocting  crime,  by  the 
fear  of  punishment,  if  that  fear  is  made  sufficiently  reasonable  to 
them.  They  will,  indeed,  seek  to  gratify  their  passions,  but  they 
will  do  so  in  channels  which  punishment  does  not  block  up.  They 
are  like  blo'ckade  runners  who  carefully  scrutinize  the  coast — Avho 
avoid  the  roads  on  which  the  blockading   squadron  stands  guard — 

sullied  spring-time  of  existence,   does  will  an  inclination  to  those  same  acts 

not   compare  with  mature  age  in  the  return  when  that  essence  which  has 

rightfulness  of  its  acts.     The  burglary  rescued  from  them  is  withdrawn, 
and  murder  of  birds-nesting  peculiarly         "Hence    the   position   taken,    that 

gratify  the  juvenile  heart,    and    how  moral  insanity,  if  by  that  term  is  meant 

often  must  the  ghost  of  the  family  cat,  a  disease  of  the  effective  faculties,  in 

done  to  death  by  truant  hands,  haunt  which  the  intellect  has  no  share,  has 

the  little  murderer's  pillow  !    Whoever  no   proved  existence  ;  and   that   what 

has   looked,    too,    upon    a  quarrel    in  has  received  that  appellation  is  nothing 

petticoats,  waged  for  a  bit  of  cake,  sees  more  than  either  the  result  of  a  latent, 

a  ferocity  as  great  almost  as  the  death-  undetected  delusion,  whose  modus  ope- 

struggle  of  mortal  foes.     Yet  what  but  randi  we  are  unable  to  demonstrate,  or 

the    power  of    pure  reason,   working  the  passive  effect  of  a  weakened  inliu- 

through  years,  changes  these  robbers,  ence    of    the    reasoning    powers   over 

murderers,  falsifiers,    and  belligerents  man's  base  instincts." — Ain.  Journ.  of 

into  discriminating  judges  and  revered  Ins.,  July,  1863. 

dispensers  of  the  gospel  of  mercy  and        See,  also,  observations  by  Dr.  Seguin, 

peace  ?     And  how  easily  and  naturally  in  the  North  Am.  Rev.,  for  Jan.  1882. 

437 


§  539."1      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

who  lie  outside  until  they  discover  some  unguarded  passage  ;  and 
who  then,  under  cover  of  night,  with  muffled  wheels,  and  stealthy 
motion,  slink  in  through  the  gap.  If  the  venture  cannot  be  made 
with  good  hope  of  success,  then  the  adventurer  creeps  sulkily  back. 
If  it  is  known  that  the  port  is  thoroughly  guarded,  then  the  attempt 
is  not  even  made.  All  this  shows  reason,  and  reason  sometimes  of 
a  high  order,  operating  in  such  a  way  as  to  create  obedience  to 
law.  Even  the  outlaw  avoids  the  act  which  he  knows  the  law  will 
certainly  detect  and  punish.  Supposing,  then,  the  compartment 
containing  the  moral  sense  to  be  actually  empty — supposing,  in 
other  words,  there  be  a  man  destitute  of  moral  sense — then  reason, 
saying,  "  if  you  do  this  you  will  be  punished,"  comes  in  and  fills 
the  compartment  with  a  principle,  which,  though  inferior  to  dis- 
interested virtue,  yet  is  sufficient  to  preserve  peace  in  the  commu- 
nity, and  to  keep  its  most  desperate  classes  in  check.'  These,  it  is 
true,  may  be  said  to  be  extreme  cases.     We  may  justly  assert 


1  Garroters  are  as  a  class  the  most 
desperate  and  brutish  of  English  crim- 
inals ;  and  as  long  as  the  worst  which 
the  chances  of  conviction  offered  was 
teansportation,  or  imprisonment  under 
the  present  humane  mitigations  of  pris- 
on life,  the  passion  for  garroting  was 
irresistible.  It  is  otlierwise,  however, 
since  flogging  has  been  revived  as  a 
punishment  for  violent  robberies.  The 
following  is  from-  an  English  paper  of 
1872:  "Two  years  ago  the  house  of 
commons  introduced  and  passed  a 
measure  providing  for  corporeal  pun- 
ishment by  the  common  hangman  in 
cases  of  garroting  and  robberies,  with 
violence,  from  the  person.  An  account 
of  the  prisoners  flogged  has  just  been 
issued.  Only  the  initials  of  the  con- 
victs are  given,  with  the  nature,  rea- 
sons, and  amount  of  the  punishment, 
the  persons  by  whom  it  was  ordered, 
and  those  by  whom  it  was  witnessed. 
In  the  seven  years  covered  by  the  re- 
turn, 5614  floggings  were  administered 
in  England  and  Wales.  The  great  in- 
strument is  still  the  birch,   and   boys 

438 


are  its  chief  subjects.  Most  of  the  boys 
thus  birched  were  over  ten  years  of 
age ;  the  majority  seem  to  be  between 
eleven  and  fourteen.  There  are,  how- 
ever, a  considerable  number  at  eight 
and  nine  ;  about  a  couple  of  dozen  at 
seven  years  of  age,  and  one  small  in- 
corrigible who  stands  in  the  catalogue 
as  only  four — which  we  are  inclined  to 
hope  is  a  misprint  of  fourteen.  He  is 
down  as  having  been  sentenced  at  the 
Marylebone  police  court  in  April  last, 
and  as  having  received  ten  stripes  with 
the  birch.  The  more  formidable  in- 
strument of  punishment  is,  of  course, 
only  used  for  older  criminals.  The 
'  cat'  appears  to  be  used  in  about  one 
case  in  fifty.  In  178  cases  it  had  been 
administered  under  the  powers  of  the 
act  of  1864.  It  is  a  noteworthy  fact 
that  since  garroters  have  been  sen- 
tenced to  floggings  the  offence  has  al- 
most disappeared  from  the  criminal 
records  of  England."  To  same  effect, 
see  Statement  of  Sir  Edward  Thornton, 
in  North  Am.  Rev.,  Jan.  1882,  p.  7. 


GENERAL  MORAL  INSANITY.  [§  541. 

that  there  is  no  man  entirely  destitute  of  moral  sense  ;  that  there  is 
always  some  flickering  of  conscience,  and  that  there  is  always  a 
moral  capacity  which  education  develops  or  perverts.  But  this 
makes  the  case  the  stronger.  Education  is  reason  acting  on  certain 
supplied  data  ;  and  it  is  the  duty  of  government  to  make  these  data 
plain  and  right — to  declare  that  crime  will  be  followed  by  punish- 
ment— so  that  the  right  conclusions  may  be  drawn.  On  either 
view  we  find  reason  either  modifying  the  moral  sense,  or  creating 
something  in  its  place.  So  far,  therefore,  from  reason  and  moral 
sense  being  separate  and  independent  functions,  they  are  so  inti- 
timately  allied  that  the  one  cannot  be  deranged  without  (disturbing 
the  action  of  the  other.  There  can  be  no  insanity  of  the  moral 
sense  which  does  not  imply  insanity  of  reason.  There  can  be  no 
insanity  of  reason  which  does  not  produce  insanity  of  the  moral 
sense. 

§  540.  The  second  necessary  factor  to  the  reception  of  the  doc- 
trine is,  as  above  stated,  that  this  alleged  severance  of 

1  11  ^    J  ,1-1  Burden  on 

the  moral  and  mental  factors  should  appear  to  be  not   those  who 
merely  possible  but  actual,  i.  e.,  that  it  should  be  proved   mora?  in- 
by  recorded  cases  of  persons  who  are  at  the  same  time    ^^'^^^y- 
morally  insane  and  mentally  sane.     If,  as  has  just  been  seen,  there 
can  be  no  moral  without  mental  insanity,  it  follows  that  in  all  cases 
where  moral  insanity  exists,  there  must  be  mental  disease,  however 
occult.     That  such  is  the  case  will  be  hereafter  shown,  when  the 
various  forms  in  which  alleged  moral  insanity  exhibits  itself  will  be 
specifically  examined. 

As  introductory  to  this  inquiry,  however,  come  properly  the 
opinions  of  experts.  Does  the  iveigJit  of  authority  among  experts 
substantiate  the  existence  of  this  supposed  distinctive  disease? 

1.  Authorities  in  the  affirmative. 

§  541.  For  the  idea  of  "moral  insanity"  we  must  go  back  to 
Ellinger,  who  speaks  of  it,  though  only  speculatively,  Eiiin^-er 
under  the  name  of  melancholia  sine  delirio  sive  pertur-  '•^^^  Pinei. 
batio  mentis,  mania  sivie  delirio.  Pinel  (1745-1826)  made  at  one 
time  the  general  statement  "  that  there  are  madmen  in  whom  there 
is  no  perceptible  alteration  of  the  intellectual  process,  of  the  per- 
ceptions, judging  faculty,  imagination,  or  memory,  and  yet  a  perver- 
sion of  the  manifestations  of  the  will,  in  a  blind  impulse  to  the 

439 


§  542.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

commission  of  violence,  or  even  of  bloodthirsty  rage,  without  any 
assignable  dominant  idea,  any  delusion  of  the  imagination,  which 
could  cause  such  a  propensity."  Pinel  is  no  doubt  entitled  to  the 
highest  respect,  both  for  his  skill  and  his  humanity.  Under  his 
administration,  the  Bic^tre  and  the  Salpetri^re  were  in  time  rescued 
from  barbarous  neglect,  and  placed  in  a  condition  of  comparative 
health,  moral  as  well  as  physical.  A  rightful  reaction  from  the 
cruelty  of  the  old  French  conception  of  insanity,  acting,  it  is  true, 
in  his  case  on  a  mind  not  free  from  romanticism,  naturally  led  him 
to  accept  Rousseau's  idea  that  crime  is  itself  an  insanity.  Yet, 
when  we  scrutinize  his  writings,  we  will  be  surprised  at  finding  how 
cautious  his  speculations  really  were.  Manie  sans  delire  he  no 
doubt  spoke  of  as  a  specific  form  of  insanity  ;  but  the  illustrations 
he  used  to  establish  this  are  all  cases  of  melancholia  or  of  suppressed 
mania,  whose  distinctive  feature  was  not  the  absence  of  mental  dis- 
turbance, but  simply  the  absence  of  delirium  and  incoherence.  He 
positively  tells  us  that  he  has  rarely  seen  cases  of  this  class  in 
which  the  mind  was  not  "  changed  or  perverted." 

§  542.  Esquirol  (1772-1840)  was  Pinel's  assistant  at  the  Sal- 

petri^re,  and  imbibed,  though  under  more  strictly  scien- 
EsquiroL        \^  '  .  .  _         '         ,  °  .       .  .  "^-r,       , 

tific  conditions,  his  master  s  humanitarian  views.    Jout  he 

concedes  that  psychologically  there  can  be  neither  '•  moral  insanity," 
nor  "  reasoning  mania,"  nor  insanity  of  any  kind,  in  which  the 
understanding  is  not  "  more  or  less  afiected."  In  fact  his  argu- 
ment  on  this  point  is  precisely  that  used  in  the  following  pages  to 
show  the  psychological  absurdity  of  an  exclusively  moral  insanity. 
"  Were  it  not  thus''''  (that  the  understanding  is  afi"ected),  "  the 
insane  would  permit  themselves  to  he  controlled  hy  their  understand- 
ing,  and  would  discover  that  their  views  are  false,  a7id  their  ac- 
tions unusual  and  strange.  Their  understanding  is  more  or  less 
at  fault ;  it  has  lost  its  influence  over  the  will,  and  is  no  longer  in 
harmony  with  the  other  faculties.  Among  the  insane  who,  without 
motive,  are  drawn  away  instinctively  to  the  commission  of  repre- 
hensible acts,  which  would  he  criminal  if  they  enjoyed  the  use  of 
their  reason,  intellectual  action  is  suspended. ''^^ 

'  For  the  translation  and  citations  of    Am.  Journ.  of  Ins.  for  1866  (vol.  23), 
this  and  the  prior  quotation  I  am  in-     p.  30. 
debted  to  an  article  by  Dr.  Chipley,  in 

440 


GENERAL  MORAL  INSANITY.  [§  544. 

§  543.  To  Gall  (1758-1828)  we  are  indebted  for  most  of  the 
well-known  and  well-used  anecdotes  which  form  the  chief 
proof-cases  of  moral  insanity.  Like  Pinel,  of  whom  he 
was  the  contemporary,  he  was  tinged  in  his  philosophy  by  the  sen- 
timental humanitarianism  of  Rousseau ;  but  unlike  Pinel,  he  was 
as  devoid  of  any  practical  experience  as  an  attendant  on  the  in- 
sane as  he  was  deficient  in  scientific  accuracy  as  a  psychologist. 
Of  the  truth  of  his  phrenological  surmises  it  is  unnecessary  here 
to  speak ;  it  is  sufficient  to  say  that  he  based  these  surmises  on 
statistics  the  most  careless.  Reports  of  experts,  testimony  Avhich 
had  been  rendered  on  judicial  examinations,  judgments  of  courts, 
seem  to  possess  no  interest  to  him ;  and  most  of  the  proof-cases 
already  alluded  to,  and  which  hereafter  will  frequently  recur  to 
our  attention,  are  cited  by  him  from  "  personal  observation,"  or 
from  "  German  newspapers,"  without  any  references  which  will 
enable  the  citations  to  be  verified.  Nor  does  he  pretend  to  give 
a  full  report  even  of  those  cases  which  without  a  full  report  would 
be  worthless.  Thus  he  tells  us  of  persons  who  had  "  irresistible 
impulses"  to  commit  certain  crimes ;  but  he  gives  us  no  evidence 
from  which  we  can  infer  that  the  case,  having  been  duly  explored, 
was  not  one  where  general  insanity  could  be  proved.  It  was  this 
looseness  which,  notwithstanding  the  ingenuity  of  the  Reclterches 
sur  le  Systtme  Nerveaux,  etc.,  presented  by  him  to  the  Academy, 
left  him  with  but  a  single  vote  when  his  name  Avas  proposed  for 
membership  to  that  body. 

§  544.  To  Dr.  Prichard  (1786-1848),  however,  the  term  "moral 
insanity"  OAves  its  origin,  and  the  idea,  such  as  it  is,  its 
conception.      Plis  scientific  researches  were  mainly  in   the  origi- 
ethnology.     Psychology  received  from  him  little  notice,    t^e"e°^ 
nor  does  it  appear  that  until  1841   he  paid  much  atten- 
tion to  the  condition  of  the  insane.      His  practice,  down  to  that 
period,  was  in  Bristol,-  England,  but   his  reputation  was  rather 
literary  than  medical ;    and  no  one  can  glance  at  the  medical  con- 
troversies of  the  day  without  seeing  that  his  rank  in  his  own  pro- 
fession was  not  high.      Hence  it  was  that  the  term  "  moral  in- 
sanity," when  introduced  by  him,  was  often  treated  Avith  ridicule, 
and  was  invested  with  an   extreme  meaning  Avhich  he  never  in- 
tended to  convey.      For  he  is  far  from  saying  that  the   "  morals  " 
could  be  exclusively  and  irresponsibly  insane.      He  tells  us  that 

441 


§  546.]      MENTAL   UNSOUNDNESS   CONSIDEEED    PSYCHOLOGICALLY. 

in  "  moral  insanity "  there  is  "  in  many  cases "  "  hereditary 
tendency  to  madness ;"  in  others,  prior  "  madness ;"  in  others, 
"  a  slight  attack  of  epilepsy,  or  some  fever  or  inflammatory  dis- 
order." 

§  545.  Prominent  among  more  recent  exponents  of  this  view  is 
In  later  ^^^'  K.ay.  "  In  fact,  it  has  always  been  observed," 
times,  Eay.  gj^yg  j.}-^jg  eminent  and  experienced  physician,  "  that 
insanity  as  often  affects  the  moral  as  it  does  the  intellectual  per- 
ceptions. In  many  cases  there  is  evinced  some  moral  obliquity 
quite  unnatural  to  the  individual,  a  loss  of  his  ordinary  interests 
in  the  relations  of  father,  son,  husband,  or  brother,  long  before  a 
single  word  escapes  from  his  lips  '  sounding  to  folly.'  Through 
the  course  of  the  disease  the  moral  and  intellectual  impairments 
proceed  pari  passu,  while  the  return  of  the  affections  to  their 
natural  channels  is  one  of  the  strongest  indications  of  approaching 
recovery.  Such  being  the  fact,  it  ought  not  to  be  a  matter  of 
surprise  that  in  some  cases  the  aberration  should  be  confined  to 
the  moral  impairment,  the  intellectual,  if  there  be  any,  being  too 
slight  to  be  easily  discerned." 

§  546.  Bearing  on  the  question  on  its  physiological 
side,  we  have  the  followed  observations  of  Dr.  Carpen- 
ter: — 
"  The  more  active  forms  of  delirium  pass  by  almost  imperceptible 
gradations  into  the  state  of  mania,  which  is  usually  characterized 
by  the  combination  of  complete  derangement  of  the  intellectual 
powers  with  passionate  excitement  upon  every  point  which  in  the 
least  degree  affects  the  feelings.  There  is,  however,  a  considerable 
amount  of  variety  in  the  phases  of  mania,  depending  upon  differ- 
ences in  the  relative  degree  of  intellectual  and  of  emotio7ial  distur- 
bance. For  there  may  be  such  a  derangement  of  the  former  as 
gives  rise  to  complete  incoherence  in  the  succession  of  ideas,  so  that 
the  reasoning  power  is  altogether  suspended ;  and  yet  there  may 
be  at  the  same  time  an  entire  absence  of  emotional  excitement,  so 
that  the  condition  of  the  mind  is  closely  allied  to  that  of  dreaming 
or  of  rambling  delirium.  On  the  other  hand,  the  intellectual  powers 
may  be  themselves  but  little  disturbed,  the  trains  of  thought  being 
coherent,  and  the  reasoning  processes  correctly  performed ;  but 
there  may  be  such  a  state  of  general  emotional  excitability,  that 
nothing  is  felt  as  it  should  be,  and  the  most  violent  passion  may  be 
442 


GENERAL   MORAL   INSANITY.  [§  549. 

aroused  and  sustained  by  the  most  trivial  incidents,  or  by  the  wrong 
ideas  which  are  formed  by  the  mind  as  a  consequence  of  their  mis- 
interpretation. Between  these  two  opposite  states,  and  that  in 
which  the  disturbance  affects  at  the  same  time  the  intellectual  and 
emotional  parts  of  the  mental  nature,  there  is  a  complete  succession 
of  transitional  links  ;  but  under  all  the  phases  of  this  condition 
(these  often  passing  into  each  other  in  the  same  individual)  there 
is  one  constant  element,  namely,  the  deficiency  of  volitional  control 
over  the  succession  of  thought.  This  deficiency  appears  to  be  a 
primary  element  in  those  forms  which  essentially  consist  in  intellec- 
tual disturbance  ;  whilst  in  those  of  which  emotional  excitement  is 
the  prominent  feature  it  seems  rather  to  result  from  the  overpower- 
ing mastery  that  is  exercised  over  the  will  by  the  states  of  uncon- 
trollable passion  which  succeed  each  other  with  little  or  no  interval. 
It  seems  probable,  however,  from  the  phenomena  of  intoxication, 
that  the  very  same  agency  which  is  the  cause  of  the  undue  emotional 
excitability  also  tends  to  produce  an  absolute  diminution  in  the 
power  of  volitional  control."^ 

§  547.  As  inclining  to  accept  the  doctrine  of  mania  sine  delirio, 
thoush  with  great  cautiousness  of  expression,  we  may 

°  *  .  .  .         Morel. 

cite  Morel,  a  recent  distinguished  French  writer  on  in- 
sanity, from  whom  copious  translations  are  made  in  the  third  edition 
of  this  work. 

§  548.  Campagne^  may  be  also  ranked  as  a  modified  adherent  of 
the  same  school,  though,  with  the  usual  French  passion 

Campagne. 

for  novel  discrimination,  he  expurgates  from  his  "  moral 
insanity"  all  the  supposed  "  moral  monomanias,"  and  ends  by  re- 
jecting Pinel's  descriptive  title,  "/o?^<?  raisonnantey 

§  549.  M.  Brierre  de  Boismont^  has  been  cited  as  a  vindicator 
of  the  same  doctrine,  though  not  very  accurately.  In  Brierre  de 
the  first  place,  it  may  be  observed  that  he  disowns  the  Boismont. 
French  parentage  of  the  disease,  calling  it  the  ''  moral  insanity 
of  the  English  ;"  closing  his  eyes  to  the  fact  that  it  is  repu- 
diated in  toto  by  English  jurists.  In  the  second  place,  when  he 
comes  to  define  this  "  moral  insanity  of  the  English,"  he  gives 

'  Carpenter's  Physiology,  Phil.,  1856,  ^  See  his  essay  in  Annales  d'Hygiene 

§§  704,  707.  Publique,    Nos.    53,    54.     1867.      See 

2  Traite  de   la   Manie   Raisonnante,  Maschka's    Handbuch    Gerich.     Med. 

par  le  Docteur  Campagne.    Paris,  1869.  Tubingen,  1882. 

443 


§  551.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLT. 

symptoms  very  different  from  that  phase  of  moral  insanity  which  is 
described  by  exponents  of  this  view  among  ourselves.  Thus  he 
declares  that  the  disease  in  question  is  but  a  symptom  or  manifesta- 
tion of  general  insanity.  Intellectual  derangement  exists  and  will 
be  displayed  by  the  patient  when  off  his  guard.  A  cautious  and 
protracted  examination  will  even  discover  marks  of  mania  in  his 
letters.  He  does  not  trouble  himself,  we  are  further  informed, 
about  his  acts  of  guilt,  and  generally  does  not  regard  them  as 
wrong.  Certainly  this  "  moral  insanity  of  the  English"  would  not 
be  regarded  by  English  writers  of  this  school  as  convertible  with 
moral  insanity  as  defined  by  themselves. 

§  550.  Mittermaier,  a  jurist  of  great  ability,  has  also  been  cited  as 
Mitter-  approving  this  view  :  but,  when  his  writings  on  this  topic 

maier  has      are  scrutinized,  it  will  be  found  that  this  assumption  is 

been  mcor-  ... 

rectiy  cited  erroneous.  In  his  edition  of  Eeuerbach's  Lehrhuch  des 
ingthis  "  Peinliches  RecJits,^  he  is  careful  to  declare  (1),  that 
^^^^'  the  so-called  latent  insanity  {amentia  occulta)  is  not  a 

substantive,  independent  disease,  and  (2)  that  the  assumption  of 
monomania  is  gratuitous,  because  all  alleged  cases  of  insane  mono- 
mania are  resolvable  into  other  forms  of  disease,  and  in  sane  mono- 
mania, responsibility  is  not  extinguished.  This  brings  him  to  the 
question  of  "  irresistible"  impulse.  He  admits  this  condition,  but 
he  speaks  of  it  as  the  incident  of  disease  ;  and  he  links  the  symp- 
tom with  melancholia,  maintaining  that  ivhen  thus  constituted  there 
exists  a  powerful  impulse,  an  irresistible  force  Qein  geivaJtlidtiger 
Trieh,  eine  unividersteldiche  Kraft).  This  is  very  strong  language ; 
but  he  adds  that  to  constitute  this  state,  there  must  be  at  the  time 
a  suspension  of  self-consciousness.  When  this  is  conceded,  and 
when  we  remember  that  he  rejects  the  hypothesis  both  of  amentia 
occulta  and  of  monomania,  we  find  that  all  that  he  admits  is  that  in 
certain  states  of  mental  disease,  there  are,  in  connection  with  melan- 
cholia, irresistible  impulses. 

§  651.  But  the  most  consistent  and  philosophical  vindication  of 
these  views  is  to  be  found  in  the  Fsiiclioloqie  Naturelle, 

Its  most  7-.        7  1     m       ■  It 

consistent  or  ±,tude  SUV  h  Iraitement  des  Alienes  et  des  CrimineJs, 
Prospe/^  ^1  ^^-  Prosper  Despine,  published  in  Paris  in  1868. 
Despine.        Capital  punishment  this  learned  theorist   emphatically 

>  Giessen,  1847,  p.  16f),  §  90a. 

4i4 


GENERAL   MORAL   INSANITY.  [§"551. 

denounces  as  an  invasion  of  inalienable  human  rights.  Retributive 
punishment  of  any  kind  is  to  be  discarded,  and  only  such  punish- 
ment as  is  reformatory  applied.  Moral  sense,  he  declares,  is  not 
the  result  of  knowledge,  and  cannot  be  acquired.  Some  men  are 
destitute  of  it,  and  these  men  are  not  to  be  taught.  Such  a  defi- 
ciency is  moral  insanity  or  moral  idiocy.  There  may  be  intellectual 
clearness,  and  the  capacity  to  reason  accurately,  coexistent  with 
this  derangement  of  the  moral  sense.  To  sustain  this  position, 
Despine  is  obliged  to  start  a  new  definition  of  free  will  (libre 
arbitre),  which  he  informs  us  can  only  exist  when  there  is  capacity 
to  act  from  a  sense  of  duty.  He  who  acts  from  other  motives  than 
a  sense  of  duty  is  not  a  free  agent.  Hence  from  the  category  of 
free  agents  are  to  be  removed  (1),  he  who  does  acts  which  appear 
to  him  indifferent,  i.  e.  neither  good  nor  bad,  and  (2)  he  who  does 
an  act  which  appears  pleasant  to  him,  because  it  is  pleasant.  Duty 
he  declares  to  be  the  great  moral  motive  of  life,  compared  with 
which  all  other  moral  motives  are  coarse  and  egoistic.  He  alone 
who  acts  in  obedience  to  duty  is  free  from  selfishness  and  egoism. 
He,  for  instance,  who  obeys  his  parents  from  love  is  egoistic  and 
selfish.  He  obeys  from  the  pleasure  he  receives  in  obeying.  He 
who  obeys  from  duty,  on  the  other  hand,  acts  irrespective  of  his  own 
pleasure  and  advantage.  He  alone  is  unselfish.  Yet  duty  is  the 
high  prerogative  and  the  exclusive  test  of  a  moral  agent.  Except 
by  those  who  are  governed  by  a  sense  of  duty,  there  can  be  no 
moral  agency.  He  who  is  governed,  not  by  duty,  but  by  affection, 
or  by  any  other  form  of  feeling  (the  author  forgets  that  sense  of 
duty  is  also  a  feeling)  simply  follows  the  lower  animals  in  the  points 
in  Avhich  they  differ  from  man.  Hence  it  is,  according  to  Despine, 
that  he  alone  who  acts  under  a  sense  of  duty  is  responsible.  Those 
who  are  destitute  of  a  sense  of  duty  are  not  responsible.  These 
propositions  are  supported  by  a  very  copious  list  of  criminals  whom 
Despine  announces  to  have  been  destitute  of  moral  sense  ;  which, 
with  a  boldness  of  assumption  like  that  which  characterizes  his  other 
psychological  assertion,  he  declares  to  be  proved  by  an  absence  in 
such  cases  of  remorse  or  repentance  for  their  evil  deeds.  In  other 
words,  where  there  is  no  remorse  there  is  no  moral  sense,  and  where 
there  is  no  moral  sense,  there  is  no  responsibility,  and  where  there 
is  no  responsibility  there  is  no  proper  punishability.  And  this  is 
then  carried  a  stage  further  by  tlie  declaration  that  absence  of  moral 

445 


§  552.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

sense  is  to  be  inferred  from  the  commission  of  all  gross  and  cruel 
crimes,  and  hence  that  such  crimes  imply  irresponsibility.  In  other 
words,  every  great  criminal  is,  in  the  moment  of  his  crime,  morally 
insane  ;  and  it  is  as  unjust  to  punish  such  as  it  is  unjust  to  punish 
lunatics.  The  fallacy  of  this  reasoning  rests,  it  need  scarcely  be 
said,  in  the  assumption  that  "  sense  of  duty,"  like  the  various  other 
faculties  and  properties  of  the  mind,  is  contained  in  a  separate  and 
hermetical  compartment;  and  that,  when  this  compartment  is  empty, 
it  cannot  be  filled  by  reason.  But  there  is  no  such  separation,  as 
has  been  already  fully  shown,  of  the  mind's  several  faculties  and 
functions  ;  and  it  is  notorious  that  in  persons  most  destitute  of  natu- 
ral sense  of  duty,  this  faculty  may  be  supplied  by  reason.  A  man 
may  naturally,  for  instance,  be  destitute  of  a  sense  of  duty  to 
government ;  but  let  government  show  that  it  means  to  be  respected, 
and  this  sense  of  duty  will  soon  spring  up.  So  a  child  who,  imder 
a  lax  and  indulgent  mother,  shows  no  sense  of  duty  to  parents,  will 
soon,  on  the  intervention  of  a  firm  and  wise  father,  learn  that  there 
is  such  a  duty,  and  act  accordingly.  Enlightened  duty,  in  fact,  is 
often  the  creature  of  positive  law.  Of  course  as  to  the  insane  there 
is  no  capacity  to  determine  this  law,  and  no  material,  therefore, 
from  which  duty  can  be  deduced.  But  in  the  sane,  it  is  the  busi- 
ness of  the  law  to  create  and  guide  this  sense  of  duty,  and  this  must 
be  done  by  precept  and  penalty. 

2.  Present  weight  of  authority  is  in  the  negative. 
§552.    Among  those  by  whom  the  theory  was  contested  imme- 
diately after  its  promulgation  may  be  mentioned  Hein- 
gative  side     ^ich^  and  Leubuscher,^  two  very  experienced  German  psy- 
rk^h^Leu-     chological  physicians.  With  these  may  be  classed,  though 
buscher,       later  in  date,  Dr.  Gray,  of  New  York,  whose  great  prac- 

and  Gray.         .  .  '  ,         .  .  -  ,.         .   , 

tical  experience  is  given  in  a  series  of  articles  in  the 
American  Journal  of  Insanity.  It  is  interesting  to  observe  also 
that  in  five  essays  by  eminent  psychological  physicians  (Dr.  Elwell, 
Dr.  Beard,  Dr.  Seguin,  Dr.  Jewell,  and  Dr.  Folsom),  in  the  North 

1  Kritische  Abhandlung  liber  die  von        ^  Bemerkungen  ilber  Moral  Insanity 
Pridiard  als   Moral  Insanity  geschil-    und      ahnliche     Krankheitszustande. 
derte     Krankheitsform.        Allgemein.     Casper's  Wochenschr.,  Nr.  59  u.  51. 
Zeitschr.    fiir    Psychiatric,    V.    Bd.    4 
Hft. 

446 


GENERAL  MORAL  INSANITY. 


[§  552. 


American  Review  for  January,  1882,  "  moral  insanity,"  as  such, 
finds  no  support.^ 


'  From  the  London  Lmo  Times  of 
Dec.  17,  1881,  we  take  the  following 
extract  from  the  Lancet,  a  journal 
which  speaks  with  high  medical  au- 
thority : — 

"  We  fancied  the  'plea  of  insanity' 
had  been  reduced  to  absurdity  in  the 
ridiculous  attempt  made  to  show  that 
Lefroy  was  insane  ;   but  it  seems  that 
the  apotheosis  of  stupidity  is  to  take 
place  in  America.      It  is  high  time  the 
nonsense  recently  talked  and  written 
about    '  irresponsibility '     should     be 
exposed  and  ended.     If  the  supreme 
triumph  of  medical   psychology  is   to 
be  sought  in  the  attempt  to  prove  that 
men  are  mere  machines,  and  that  the 
wrong  they  do  is  not  their  doing,  but 
the  outcome  of  disease,  the  sooner  this 
branch  of  science   is   discountenanced 
by  the  common  sense  of  the  profession 
the  better  will  it  be  for  the  credit  and 
influence  of  our  cloth.      If  a  man  is 
not  acting  under  a  recognizable   and 
formulated  delirium  when  he  commits 
a  crime,  he  is  clearly  responsible,  and 
ought  to  be  so  held  unless  he  is  un- 
questionably,   and   on   grounds   other 
than  those  arising  out  of  or  associated 
with  his   crime,  shown  to  be  insane. 
The    mistake    into   which    '  experts ' 
and  those  who  follow  their  lead   com- 
monly fall  is  to  confound  the  evidences 
of  a   neurotic    constitution   with    the 
symptoms  of  mental  disease.     The  in- 
heritor of  an  organism  which  predis- 
poses to  insanity  is  not  necessarily  in- 
sane.     Lefroy   was    not    insane,    and 
Guiteau  is  not  insane.     The  only  in- 
sanity  accruing  to  the  latter  case   is 
that  which  those  who  support  the  plea 
may  themselves  import  into  it.      The 
position   of  matters  in  regard  to  this 
question  is  becoming  one  of  exceeding 


gravity,   and  it  will  soon  need  to  be 
very  seriously  discussed." 

The   Times,   in  a   leading   editorial, 
says  : — 

"  The  trial  now  in  progress  at  "Wash- 
ington and  the  controversy  which  took 
place  just  before  Lefroy's  execution 
are  foretastes  of  a  discussion  which 
is  pretty  sure  to  recur  whenever  any 
crime  a  little  out  of  the  common  order 
is  committed.  The  fact  is  that  opi- 
nion has  got  decidedly  astray  as  to 
insanity.  People  have  cast  away  the 
old  notions  without  getting  any  safe  or 
certain  substitute  for  them.  Was 
there  ever  a  more  striking  scene  of 
confusion  than  that  which  is  repeated 
day  after  day  at  Washington  ?  The 
witnesses  are  at  sixes  and  sevens. 
Each  expert  feels  bound  to  start  a 
separate  theory.  One  doctor,  who 
thought  Guiteau  insane,  threw  a  vivid 
light  on  the  value  of  his  testimony  by 
adding  that  one  of  every  five  persons 
in  business  might  be  considered  as  on 
the  border  line  of  insanity.  Others 
were  certain  of  the  prisoner's  insanity 
because  he  has  talked  so  much  about 
being  inspired.  Some  of  the  experts 
are  most  influenced  by  the  shape  of 
his  head  ;  otliers  by  the  strangeness 
of  his  utterances.  The  poor  jurymen 
are  to  be  pitied  if  they  try  to  sift  out 
the  few  grains  of  wheat  in  this  prodi- 
gious heap  of  chaff.  Unfortunately, 
they  are  not  likely  to  be  better  ofi"  if 
they  shut  their  ears  to  the  '  mad  doc- 
tors,' and  try  to  follow  the  legal  test 
of  insanity.  That  has,  no  doubt,  the 
merit  of  definiteuess.  It  may  be  arbi- 
trary ;  it  is  at  least  clear.  Whether  a 
man  knew  that  he  was  doing  wrong 
or  not  is  a  test  which  the  dullest  jury- 
man can  understand  and  apply.     But 

447 


§  553.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSTCHOLOaiCALLY. 

§  553.  Explicit  in  rejecting  this  hypothesis  is  Schiirmayer.     He 
insists  that  it  is  not  to  be  supposed  tJiat  a  single  imjjuhe  is  diseased, 


great  authorities  quote  Pinel,  and  say 
that  this  is  a  criterion  worthy  of  the 
darkest  ages,  and  that  if  it  were  put 
in  practice,  humanity  would  be  shocked 
at  the  consequences.  Only  a  few  lu- 
natics are  wholly  destitute  of  the  sense 
of  right  and  wrong.  Maniacs  who  kill 
their  children  or  their  wives  in  pa- 
roxysms of  passion  have  often  an  un- 
easy sense  that  they  are  acting  wrongly; 
to  escape  some  terrible  and  oppressive 
phantom  of  the  brain,  they  are  im- 
pelled to  stab  or  mutilate  those  who 
are  dearest  to  them.  The  '  mad  doc- 
tors' '  view  of  the  matter  is  that  we 
should  put  the  legal  test  aside  as  anti- 
quated ;  that  we  should  recognize  in 
courts  as  elsewhere  the  existence  of  a 
vast  number  of  types  of  insanity  ;  that 
what  Pinel  called  '  madness  without 
delirium '  is  common  ;  and  that  we 
should  refrain  from  punishing  many 
persons  whom  the  legal  theory  would 
consign  to  prison  or  to  the  scaffold.  It 
is  amazing  what  an  extension  is  thus 
given  to  insanity.  Let  any  one  look 
into  a  book  of  the  sixteenth  century 
about  Disquisitiones  Magicoe,  or  the 
science  of  diablerie,  as  then  under- 
stood, and  it  will  be  seen  that,  mak- 
ing allowance  for  alteration  of  lan- 
guage and  ideas,  there  is  something 
like  resemblance  between  the  witch- 
finders  of  other  times  and  some  of  the 
ingenious  specialists  of  the  present 
day.  The  latter  do  not  talk  of  per- 
sons being  possessed  with  or  agitated 
by  demons.  They  may  quote  a  Greek 
word  instead  of  imagining  the  pre- 
sence of  an  evil  spirit.  But  both  agree 
in  their  ingenuity  in  detecting  the  ex- 
istence of  mental  anomalies.  What 
adds  to  the  confusion  of  simple  people 
is  that  lawyers  also  are  found  to  be 
divided  in  opinion  as  to  this  matter. 

448 


It  is  true  that  ever  since  MacNaghten 
was  tried  for  the  murder  of  Mr.  Drum- 
mond  the  test  in  criminal  matters  has 
been  that  '  if  the  accused  was  con- 
scious that  the  act  was  one  which  he 
ought  not  to  do,  and  if  that  act  was  at 
the  same  time  contrary  to  the  law  of 
the  land,  he  is  punishable.'  But  even 
lawyers  are  not  quite  satisfied  with 
this  criterion.  Certainly  it  is  not  ac- 
cepted in  all  systems  of  jurisprudence. 
When  the  present  criminal  code  for 
Germany  was  being  prepared,  the 
framers  of  it,  of  course,  discussed  the 
question  of  sanity  ;  and  the  sugges- 
tiojis  ofi'ered  were  most  diverse.  The 
conclusion  ultimately  arrived  at  was 
very  different  from  the  test  in  use  here. 
So  shaken  by  criticism  is  the  legal 
standard  that  it  is  every-day  expe- 
rience in  courts  of  justice  that  counsel 
put  forward  a  plea  of  insanity  when 
there  is  not  the  slightest  pretence  for 
suggesting  that  the  prisoner  did  not 
know  what  he  was  about.  And  what 
is  more,  this  is  often  done  with  suc- 
cess. The  jury  are  merciful,  and  side 
with  the  doctors  against  the  lawyers. 
Indeed,  the  legal  theory  in  all  its 
strictness  is  practically  obsolete.  No 
jury,  for  instance,  would  be  got  to  con- 
vict a  person  who,  knowing  that  it  was 
contrary  to  the  law  to  kill,  took  the 
life  of  some  one  whom  he  believed  he 
was  providentially  called  upon  to  de- 
stroy. In  one  class  of  cases  the  medi- 
cal theory  of  insanity  may  be  said  to 
have  triumphed.  An  eccentric  person 
makes  a  will  or  executes  a  deed  in 
favor  of  a  stranger.  He  leaves  his 
property  to  the  Crown.  He  directs 
his  body  to  be  dissected.  His  will  is 
disputed  by  his  relatives.  They  have 
not  got  to  show  that  he  was  imbecile 
or  a  manaic,  or  that  he  was  oblivious 


GENERAL    MORAL   INSANITY. 


[§  553. 


lohile  all  the  oilier  functions  of  the  mind  retain  their    SchUr- 
Tiealthy  action.     While  the  entire  intellect  enjoys  sound    Wiasiow. 


of  all  moral  distinctions.  They  may 
admit  that  he  was  clever  and  shrewd 
and  of  more  than  average  intelligence, 
and  yet  impeach  his  fitness  to  make  a 
will.  The  late  Mr.  Smee,  once  secre- 
tary to  the  committee  of  treasury  of 
the  Bank  of  England,  was  a  competent 
man  of  business ;  he  took  an  active 
part  in  politics  ;  he  wrote  shortly  be- 
fore his  death  a  clever  pamphlet  on 
the  malt  tax.  Yet  he  labored  under 
a  hallucination  that  he  was  the  son  of 
George  IV.,  and  a  will  by  which  he 
left  his  property  to  the  corporation  of 
Brighton  was  set  aside  on  that  account. 
In  fact,  in  the  probate  court,  the  doc- 
tors' view,  that  a  partial  delusion  not 
in  any  way  affecting  a  man's  sense  of 
right  and  wrong  may  be  treated  as  in- 
sanity, is  acted  upon.  At  the  Old 
Bailey  it  is  otherwise." 

The  New  York  Tribune  of  January 
2,  1882,  gives  the  following  summary 
of  the  expert  testimony  in  the  Guiteau 
case  : — 

"  Twenty- three  physicians  have  been 
examined  upon  the  stand  with  regard 
to  insanity.  One,  Dr.  Fordyce  Barker, 
was  questioned  generally  upon  the 
subject,  as  bearing  upon  responsibility 
for  crime,  etc.,  without  any  direct  re- 
ference to  the  prisoner.  Seven  physi- 
cians were  asked  and  answered  a  hypo- 
thetical question  for  the  defence,  which 
assumed  the  insanity  of  the  prisoner, 
and  could  hardly  be  answered,  if  at 
all,  in  any  other  way  than  by  an  ad- 
mission that,  assuming  the  statements 
to  be  true,  he  was  insane.  These  were 
Dr.  Charles  H.  Nicholas,  of  the  Bloom- 
ingdale  Asylum ;  Dr.  Charles  F.  Fol- 
som,  of  the  Harvard  Medical  College ; 
Dr.  Golding,  of  the  Government  Hos- 
pital for  the  Insane ;  Dr.  James  H. 
McBride,  of  the  asylum  near  Milwau- 

VOL.  I.— 29 


kee,  Wis.  ;  Dr.  Walter  Channing,  of 
Brookline,  Mass. ;  Dr.  Theodore  W. 
Fisher,  of  Boston,  and  Dr.  James  G. 
Kiernan,  of  Chicago.  The  defence  made 
no  attempt  to  elicit  from  these  gentle- 
men the  result  of  examinations  made 
at  the  jail.  It  is  understood  that  if 
they  had  been  questioned  upon  this 
point,  most,  if  not  all,  of  them  would 
have  pronounced  Guiteau  sane. 

"  Fourteen  experts  in  insanity  have 
testified  that  Guiteau  is,  in  their  opi- 
nion, sane.  These  included  four  ex- 
perts originally  summoned  for  the  de- 
fence :  Dr.  Samuel  Worcester,  of  Salem, 
Mass.;  Dr.  Theodore  Dimon,  of  Auburn, 
Dr.  Selden  H.  Talcott,  of  the  New  York 
Homoeopathic  Asylum  at  Middletown, 
and  Dr.  Henry  P.  Stearns,  of  the  Re- 
treat for  the  Insane  at  Hartford,  Conn. 
The  remaining  ten  were  Dr.  Loring, 
the  oculist,  Dr.  Allan  McLane  Hamil- 
ton, of  New  York ;  Dr.  Janin  Strong, 
of  the  asylum  near  Cleveland,  0.;  Dr. 
S.  M.  Shew,  of  the  Middletown  (Conn.) 
Asylum  ;  Dr.  Orpheus  Evarts,  of  the 
College  Hill  Asylum,  near  Cincinnati ; 
Dr.  A.  E.  Macdonald,  of  the  New  York 
City  Asylum ;  Dr.  Randolph  Barks- 
dale,  of  the  Richmond  Asylums  ;  Dr. 
John  H.  Callender,  of  the  Nashville 
Asylum  ;  Dr.  Walter  Kempster,  of  the 
Northern  Asylum  of  Wisconsin,  and 
Dr.  John  P.  Gray,  of  Utica,  N.  Y.  All 
these  gentlemen  positively  pronounced 
Guiteau  sane.  To  their  number  can 
l)e  added  Dr.  Noble  Young,  the  jail 
physician.  Of  the  twenty-four  physi- 
cians in  all  examined,  one  only — Dr. 
E.  C.  Spitzka,  of  New  York — gave  it 
as  his  personal  judgment  that  the  pri- 
soner is  insane.  There  were  a  number 
of  experts  in  attendance,  such  as  Dr. 
Pliny  Earle,  who  would  have  testified 
that  Guiteau  was  sane,  but  were  al- 

449 


§  553.]      MENTAL  UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

health,  there  is  nothing  in  which  a  morbid  desire  of  theft,  mur- 
der, etc.,  could  originate,  and  such  a  phenomenon  is  a  psycho- 
logical impossibility,  and  the  assumption  of  such  requires  a  psy- 
chological contradiction.  A  mania  sine  delirio,  a  mania  without 
a  morbid  participation  or  disturbance  of  the  perceptive  faculties, 
is,  therefore,  out  of  the  question,  as  a  desire  to  injure  or  destroy 
is  impossible  without  an  act  of  the  mind  by  which  this  purpose  is 
entertained,  and  as  reason  and  understanding  are  alike  disordered 
whether  they  insinuate  a  wrong  motive  for  the  morbidly-conceived 
purpose  of  the  act,  or  whether  they  entirely  omit  the  suggestion  of 
any  reason  whatever.^ 

So,  also,  Dr.  Winslow  :  "  Is  there  not,"  he  says,  "  a  mysterious, 
inscrutable,  and  inexplicable  oneness  in  the  constitution  of  the 
human  mind,  defying  all  attempts  at  an  accurate  and  minute  classi- 
fication and  separation  of  its  powers  ?  If  such  a  state  of  mutual  de- 
pendence, action,  and  union  obtains  between  various  states  of  mind 
(I  will  not  use  the  arbitrary  term  '  faculty'  or  '  power')  in  a  condi- 
tion of  health,  d/orizoW,  how  impossible  it  is  to  disjoin,  separate, 
and  individualize  the  mental  faculties  Avhen  under  the  influence  of 
disease.  Can  we  draw  the  line  of  demarcation  between  a  diseased 
and  healthy  condition  of  the  delicate  structure  of  the  vesicular 
neurine  of  the  brain  ?  Is  it  not  obviously  impossible  for  the  most 
experienced  anatomist  to  say.  This  is  the  territory  which  separates 
the  morbid  from  the  healthy  portion  of  the  brain  ?  or  for  the  physi- 

lowed  to  go  home  on  account  of  sick-  toms  which  a  man  claiming  his  delusion 

ness  or  for  domestic  reasons.  ought  not  to  have,  and  has  none  of  the 

"The  testimony  given  by  the  four-  symptoms  and  traits  which  he  ought 

teen  experts  covers  every  ground  upon  to  have.      If  he  is  insane,  there  must 

which   insanity   has    been   or  can   be  be  a  new  classification  of  insanity,  and 

claimed.      As    accumulated,   it   is   an  Guiteauism  must  be  given  a  place  in 

avalancheof  proof  against  the  assassin,  the   books    with   mania,   melancholia. 

It  has  been  shown  that  he  has  none  of  and  dementia." 

the  physical  signs  of  insanity;  in  the  Tothisitmay  be  added  that  Dr.  Gray's 

shape  of  the  skull,    condition  of  the  testimony  was  emphatic,  not   only  to 

skin,  tongue,  or  palate,  appearance  of  the  sanity  of  Guiteau,  but  to  the  non- 

the  eye,  habits  of  sleep,  digestion,  etc.  existence  of   "moral   insanity"   as  a 

It  has  been  shown  that  if  he  is  insane,  distinct  disease  producing  irresponsi- 

he  is  an  exception  to  all  the  intellec-  bility.     See  ijifra,  §  657,  for  Guiteau's 

tual  manifestations  seen  in  the   expe-  case  in  detail. 

rience  of  the  most  distinguished  alien-  '  Schiirmayer,  Gericht.  Med.  §  549  ; 

ists.     He  has  all  the  traits  and  symp-  supra,  §  58,  etc. 

450 


GENERAL  MORAL  INSANITY.  [§  553. 

cian  to  assert,  such  an  extent  of  disorder  of  the  mind  is  consistent 
with  safety  and  responsibility,  but  beyond  the  boundary  danger  and 
irresponsibility  commence  ? 

"  But,  apart  altogether  from  the  metaphysical  objection  to  the 
theory,  let  us  for  a  moment  consider  whether  such  a  form  of  disease 
as  partial  insanity  or  monomania  comes  under  the  observation  of 
the  practical  physician.  There  are,  undoubtedly,  forms  of  insanity 
in  which  there  is  an  unhealthy  predominance  and  exaltation  given 
to  particular  mental  impressions  or  delusions  ;  where  certain  states 
of  morbid  thought  and  feeling  stand  out  in  bold  and  prominent  re- 
lief, giving,  as  it  were,  a  character  or  type  to  the  mental  disease  ; 
hut  I  never  yet  saw  a  case  of  alienation  of  mind  in  which  the  delu- 
sion or  hallucination  was  in  reality  confined  to  one  or  two  ideas, 
those  ideas  exercising  no  influence  over  the  conduct  of  the  person^ 
and  not  implicating ,  to  a  certain  degree,  the  other  faculties  of  the 
mind.  It  is  impossible  to  circumscribe  the  operation  of  morbid 
conditions  of  thought,  or  to  draw  a  line  of  demarcation  between 
those  states  of  mind  that  are  clearly  under  the  influence  of  disease, 
and  those  operations  or  faculties  of  the  intellect  that  remain  appa- 
rently unaifected.  A  man  believes  himself  to  be  our  Saviour,  or 
Mahomet  the  prophet.  Apparently  the  man's  mind  is  sound  upon 
all  other  points  ;  but  within  what  limits  can  we  confine  and  restrain 
the  influence  of  so  serious  a  delusion  ? 

"  A  slight  accession  of  bodily  disease,  a  severe  attack  of  indi- 
gestion, congestion  of  the  liver,  or  a  torpid  state  of  the  bowels, 
may  make  all  the  difference  between  security  and  safety  in  such  a 
case.  A  person  laboring  under  the  dominion  of  one  palpable  insane 
delusion  or  hallucination  (I  am  now  using  the  term  delusion  in  its 
strictly  medical  acceptation),  ought  not  to  be  treated  quoad  the 
question  of  criminality  as  a  sane  and  rational  man.  But  let  me  for 
a  minute  revert  to  the  question  as  to  the  existence  of  partial  insan- 
ity, or  monomania.  Foville,  a  French  physician  of  great  celebrity, 
who  had  for  many  years  the  medical  charge  of  the  Charenton 
Lunatic  Asylum  near  Paris,  when  speaking  of  monomania,  observes  : 
'  Monomania  consists  in  a  delirium,  partial  and  circumscribed  to  a 
small  number  of  objects.  Monomania,  in  its  most  simple  condition, 
is  excessively  rare  ;  the  number  of  patients  who  only  rave  on  one 
subject  is  infiyiitely  small  compared  to  the  number  of  those  who  are 
called  monomaniacs.     Under  this  head  are  often  confounded  all 

451 


§  554.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLY. 

those  who  have  some  habitual  dominant  idea.  I  have  only  seen 
two  cases  which  rigorously  merit  the  name,  and  these  two  even 
were  affected  from  time  to  time  with  more  extended  delirium.' 

"  He  again  remarks :  '  Let  any  one  examine  the  hospitals  of 
Paris,  of  Bicetre,  of  Charenton,  and  he  will  see  that  amongst  the 
thousands  of  insane,  there  is  scarcely  one  true  monomsimac, perJiaps 
not  one.  Insanity  attacks  principally,  at  one  time  the  intellectual, 
at  another  the  moral  or  affective  faculties  ;  and,  again,  the  sensa- 
tions and  movements.  Each  of  these  may  be  more  or  less  affected 
than  the  others ;  and  so,  when  the  intellect,  without  being  unaf- 
fected, is  less  deeply  involved  than  the  other  faculties,  we  fall  into 
the  error  of  considering  it  sound,  and  call  these  monomaniacs. 
Indeed,  it  seems  to  me  as  though  the  descriptions  of  monomania 
had  been  written  upon  the  word,  and  not  from  nature  ;  that  is  to 
say,  that  writers  have  described  what  might  merit  the  title  of 
monomania,  but  of  which  they  can  find  no  instance  in  practice.' 

"  Moreau,  also  a  great  authority  in  France,  says  :  '  It  is  impos- 
sible to  admit  that  the  intellectual  faculties  can  be  modified  in  a 
partial  manner.  In  the  slightest  as  well  as  the  most  severe  forms 
of  insanity,  there  is  necessarily  a  complete  metamorphosis — a  radi- 
cal and  absolute  transformation  of  all  the  mental  powers  of  the  one. 
In  other  words,  we  are  insane  or  we  are  not  insane  ;  we  cannot  be 
half  deranged  or  three-quarters,  full  face  or  profile.' 

"  Baillarger,  an  eminent  French  psychological  physician,  adopts 
the  same  view  of  the  question,  and  maintains  that  the  alleged  mono- 
maniacal  idea  is  more  frequently  predominant  than  exclusive.  If 
we  look  to  Germany,  we  find  the  first  psychological  authority  of 
that  country,  Damerow,  declaring  that  '  he  never  knew  a  case  of 
the  disease  of  the  mind  called  monomania,  in  which  there  was  not 
a  fundamental,  general  psychical  disorder.'  "^ 

§  554.  Dr.  Mayo  thus  speaks  on  the  same  point:  "  I  may  observe 
that  the  theory  of  either  moral  or  impulsive  insanity  is 
too  liable,  for  anything  that  Dr.  Prichard  has  suggested, 
to  occasion  the  sudden  outbreaks  of  the  brutal  character — a  cha- 
racter under  rapid  development,  at  present,  in  the  lower  orders  of 

1  Dr.  Forbes  Winslow's  Essay  on  the    vol.  xv.  p.  173.     See  an  article  in  13 
Legal   Doctrine  of   Responsibility,   re-    Bulletin  Med.  Leg.  Soc,  N.  Y.,  161. 
printed  in  Am.    Journal  of  Insanity, 

452 


GENERAL  MORAL  INSANITY.  [§  554. 

the  country — to  find  refuge  under  this  plea.  Such  was  the  appli- 
cation of  it  which,  some  years  ago,  protected  the  Honorable  Mr. 
Touchet  from  the  penal  consequences  of  a  great  crime.  That  gen- 
tleman put  to  death,  by  a  pistol-shot,  the  marker  of  a  shooting- 
gallery.  The  act  was  sudden,  and  there  was  no  apparent  motive  ; 
but  it  was  not  performed  under  any  semblance  of  delirium.  Mr. 
Touchet  was  eccentric,  and  he  was  blase.  He  fancied  that  he  de- 
sired to  be  hanged — at  the  gallows  he  would  probably  have  thought 
differently — and  he  was  reckless  and  brutal  enough  to  give  himself 
a  chance  of  this  fate,  at  the  expense  of  the  life  of  a  fellow  creature. 
I  have  noticed  him  since  in  the  criminal  department  of  Bedlam,  in- 
souciant and  indifferent  enough,  but  certainly  not  insane  in  any 
sense  of  the  word  that  would  not  entirely  disintegrate  its  meaning ; 
neither  when  we  proceed  to  consider  the  sense  which  the  law  in- 
tends to  give  to  the  expression  of  the  certificate — '  unsoundness' — 
shall  we  find  this  epithet  at  all  more  appropriate  to  Mr.  Touchet's 
case,  which  was  simply  one  of  brutal  recklessness.  With  respect 
to  the  misapplication  of  the  plea  of  insanity  to  hysteria,  we  have 
the  case  of  a  nursery-maid,  placed  in  Bethlehem  Hospital  in  18-iO. 
A  trifling  disappointment,  relative  to  an  article  of  dress,  had  pro- 
duced in  her  a  wayward  state  of  mind.  She  labored,  at  the  time, 
under  diminished  catamenia.  An  object  to  which  she  Avas  generally 
much  attached  came  in  her  way,  namely,  the  infant  whom  she  had 
nursed,  and  she  destroyed  it,  as  a  fanciful  child  breaks,  in  its  moodi- 
ness, a  favorite  doll.  No  fact  more  nearly  approaching  to  delirium 
than  the  above  was  stated  in  exculpation  or  excuse  at  the  trial. 
But  Dr.  Prichard's  work,  on  the  Different  Forms  of  Insanity  in  re- 
lation to  Jurisprudence,  was  published  in  1842 ;  and,  by  1846, 
juries  had  learned  to  convert  the  uncontrolled  influences  of  temper 
into  what  he  terms  Instinctive  Insanity." 

"  As  an  instance  of  this  class  of  cases  in  which  the  judicial  au- 
thorities came  rightly  to  a  very  different  conclusion,  I  will  quote  to 
you  the  following  one,  from  Sir  Woodbine  Parish's  last  work  on 
Buenos  Ay  res.  Having  spoken  of  a  certain  wind  occasional  in  that 
climate,  which  in  some  persons  produces  peculiar  irritability  and  ill- 
humor  almost  amounting  to  a  disorder  of  their  moral  faculties,  he 
proceeds  as  follows :  '  Some  years  ago,  Juan  Antonio  Garcia,  aged 
between  thirty-five  and  forty,  was  executed  for  murder  at  Buenos 
Ayres.     He  was  a  person  of  some  education,  and  rather  remark- 

453 


§  555.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

able  for  the  civility  and  amenity  of  his  manners  ;  his  countenance 
open,  his  disposition  generous.  When  this  vento-norte — this  pecu- 
liar north  wind — set  in,  he  appeared  to  lose  all  command  over  him- 
self; and  such  became  his  irritability,  that  during  its  continuance 
he  was  engaged  in  continual  quarrels  and  acts  of  violence.  Before 
his  execution,  he  admitted  that  it  was  the  third  man  he  had  killed, 
besides  being  engaged  in  various  fights  with  knives.  When  he 
arose  from  his  bed  in  the  morning,  he  told  Sir  Woodbine's  informant, 
he  was  always  aware  at  once  of  its  accursed  influence  upon  hitn  ;  a 
dull  headache  first,  and  then  a  feeling  of  impatience  at  everything 
about  him.  If  he  went  abroad  his  headache  generally  became 
worse  ;  a  heavy  weight  seemed  to  hang  over  his  temples.  He  saw 
objects  as  it  were  through  a  cloud,  and  was  hardly  conscious  where 
he  went.  He  was  fond  of  play,  and  if,  in  such  a  mood,  a  gambling 
house  was  in  his  way,  he  seldom  resisted  the  temptation.  Once 
there,  a  turn  of  ill  luck  would  so  irritate  him,  that  he  would  proba- 
bly insult  some  one  of  the  bystanders  ;  if  he  met  with  any  one 
disposed  to  resent  his  abuse,  they  seldom  parted  without  bloodshed. 
The  relations  of  Garcia  corroborated  this  account,  and  added  that 
no  sooner  had  the  cause  of  excitement  passed  away,  than  he  would 
deplore  and  endeavor  to  repair  the  effects  of  his  infirmity.  '  The 
medical  man,'  says  Sir  Woodbine,  '  who  gave  me  this  account,  at- 
tended him  in  his  last  moments,  and  expressed  great  anxiety  to  save 
his  life,  under  the  impression  that  he  was  hardly  to  be  accounted  a 
reasonable  being.'  '  But,'  he  adds,  '  to  have  admitted  that  plea, 
would  have  led  to  the  necessity  of  confining  half  the  population  of 
the  city  when  the  wind  sets  in.'  I  quite  agree  with  the  conclusion 
which  this  remark  implies,  as  to  the  fate  of  Garcia.  He  was  him- 
self aware  of  the  murderous  instinct  to  which  he  was  liable,  and  of 
its  exciting  causes.  Surely,  when  such  knowledge  is  in  the  posses- 
sion of  the  delinquent,  he  must  be  made  responsible  for  the  non- 
avoidance  of  exciting  causes."^ 

§  655.  It  is  further  insisted,  as  a  question  of  fact,  that  in  the 
Analysis  by  so-calied  cases  of  moral  insanity,  mental  unsoundness  can 
^^^y-  almost  in  every  instance  be  shown  to  exist  by  positive 

proof.  This  is  illustrated  by  an  "  analysis  of  fifty -two  cases  of 
insanity  marked  by  a  disposition  to  homicide,"  furnished  to  the 

'  Mayo  on  Medical  Testimony  in  Lunacy,  58,  59,  60,  61,  62. 

454 


GENERAL  MORAL  INSANITY.  [§  555. 

American  Journal  of  Insanity,  for  October,  1857,  by  Dr.  J.  P. 
Gray.^     From  this  the  following  summary  is  extracted : — 

"  Sex. — Of  those  who  committed  the  act,  nineteen  were  males 
and  five  females  ;  of  those  who  made  unsuccessful  attempts,  twenty 
were  males  and  five  females. 

"  HahiU. — Of  the  entire  number  (fifty-two)  twenty-three  were 
intemperate,  or  vicious,  bad  men,  and  twenty-nine  were  of  unex- 
ceptionable character  and  habits. 

"  Hereditary  Predisposition. — In  twenty-one  of  the  fifty-two 
cases  there  existed  a  marked  hereditary  predisposition,  in  nine  no 
such  predisposition  existed,  and  in  twenty-two  no  facts  touching 
this  point  were  ascertained. 

"  Mental  Disease. — The  form  of  mental  disease  was  acute  mania 
in  fourteen  cases,  subacute  mania  in  three,  paroxysmal  mania  in 
two,  chronic  mania  in  four,  dementia  in  twenty-four,  melancholia  in 
four,  mania-a-potu  in  one.  Four  of  the  cases  of  mania  and  one  of 
dementia  were  accompanied  by  epilepsy. 

"  Time. — Twenty-two  of  the  twenty-four  homicides  were  com- 
mitted in  the  daytime,  the  remaining  two  in  the  early  part  of  the 
evening.  Of  the  twenty-five  attempts,  twenty-one  were  made  in  the 
daytime,  two  in  the  night,  and  two  both  in  the  day  and  night. 

"  Object  of  Attack. — A  father  was  the  victim  in  one  case,  a 
brother-in-law  in  one,  a  husband  in  one,  wives  in  four,  children  in 
ten,  a  cousin  in  one,  neighbors  in  four,  neighbors'  children  in  three, 
and  entire  strangers  in  seven  cases.  In  nearly  the  same  propor- 
tion the  immediate  relations  of  the  patients  were  the  objects  of 
attack  in  those  cases  in  which  the  attempt  was  unsuccessful. 

"  Suicidal  Disposition. — In  ten  of  the  fifty-two  cases  a  suicidal 
tendency  accompanied  the  disposition  to  homicide. 

"  Commitment  to  Asylum. — Of  the  twenty -four  homicides,  eleven 
were  acquitted  by  the  courts  before  which  they  were  arraigned, 
on  ground  of  insanity,  and  ordered  to  the  asylum  ;  one  was  found 
guilty,  but  sentence  was  suspended ;  four  were  sent  here  on  pre- 
liminary trial,  six  without  any  criminal  proceedings  ;  and  two  were 
placed  in  the  asylum  by  their  friends. 

"  Results. — Of  the  twenty-four  patients  who  committed  homicide, 
seven  recovered,  eleven  are  unimproved,  two  eloped,  and  four  have 

'  See  a  similar  article  by  the  same  author  in  32  Am.  Journ.  Ins.,  pp.  1,  153. 

455 


§  556.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

died.  Of  the  twenty-five  patients  who  were  prevented  from  carry- 
ing their  homicidal  purpose  into  execution,  eight  recovered,  thirteen 
are  unimproved,  and  four  have  died. 

"  Arranging  these  cases  under  Dr.  Bucknill's  very  convenient 
modified  classification  of  Esquirol,  we  have  the  following  result:  — 

"  1.  '  Those  wherein  the  crime  has  been  occasioned  by  delusion, 
and  no  reasonable  person  can  doubt  or  object  to  the  irresponsibility 
of  the  offender.'  In  this  class  we  have  thirty -four  of  the  fifty-two 
cases. 

"  2.  '  Wherein  the  offender,  though  suifering  from  cerebro-mental 
disease,  has  committed  the  crime  under  the  influence  of  some  motive 
not  of  a  delusive  character.'  In  this  class  we  have  seven  of  the 
fifty-two  cases. 

"3.  "Where  with  general  symptoms  of  cerebro-mental  disease 
neither  delusion  nor  motive  for  the  crime  is  discernible.'  In  this 
class  we  have  eleven  of  the  fifty-two  cases." 

§  556.    Griesinger's  eminence  as   an  expert  in  this  branch  of 
science,  no  one  can  question.     We  may  not  fully  accept 
by  Grie-        the  statement  of  Dr.  Robertson  and  Dr.  Rutherford,  his 
singer.  English  translators,^  that  "  he  is  essentially  the  repre- 

sentative and  the  acknowledged  leader  of  the  modern  German 
medical  thought,"  for  this,  so  far  as  the  question  of  primacy  goes, 
may  be  contested  ;  but  we  cannot  contest  the  position,  that,  as  a 
careful  and  philosophic  observer  of  mental  phenomena,  no  modern 
authority  surpasses  him,  either  as  to  philosophic  conception  or 
sober  accuracy  of  induction.  On  the  subject  before  us,  he  thus 
speaks:  "  Before  concluding  the  consideration  of  this  subject  it 
may  be  well  to  say  a  few  words  regarding  the  so-called  .mania  sine 
delirio,  a  pathological  variety  established  by  Pinel,  we  may  say,  to 
the  detriment  of  science  ;  for  so  true  and  so  serviceable  was  the 
remark  which  Pinel  deduced  from  his  observations,  that  the  violent 
actions  in  mania  are  not  always  founded  upon  perversion  of  the 
i(jeas — we  are  of  opinion  now-a-days  that  originally  this  is  alto- 
gether not  the  case — so  confusing  was  it  to  give  the  same  designation 
to  two  different  morbid  mental  states  ;  namely,  on  the  one  hand,  to 
actual  periodic  attacks  of  fury  with  very  little  delirium,  and,  on  the 
other  hand,  and  principally,  to  those  moderate  states  of  mental  ex- 

'  Sydenham  ed.,  1867. 

456 


GENERAL    MORAL    INSANITY.  [§  556. 

altation  referred  to  in  the  former  paragraph,  in  which  the  patients 
perform  foolish  actions  and  show  perversity  of  demeanor,  but  are 
also  in  a  position  to  justify  and  to  explain  their  conduct  by  a  course 
of  coherent  reasoning  which  still  lies  within  the  bounds  of  possi- 
bility, i.  e.,folie  raisonnante.  The  disciples  of  Pinel  have  even 
ranged  other  states  under  the  same  title  ;  for  example,  that  con- 
dition which  we  have  described  as  a  moderate  degree  of  melan- 
cholia with  violence,  and,  more  than  this,  even  outbreaks  of 
violence  in  consequence  of  hitherto  concealed  fixed  ideas  :  for  the 
latter  there  is  not  even  the  appearance  of  reason. 

"  If  we  consider  more  closely  to  which  maniacal  states  the  desig- 
nation mania  sine  delirio  can  be  applied,  we  recognize  the  funda- 
mental fact  that  in  no  single  case  of  mania  is  the  conscious  thought, 
the  intelligence,  perfectly  free  from  any  disorder. 

"  Even  in  the  very  slightest  degrees  of  mania  the  intelligence 
participates  in  the  general  exaltation,  though  it  be  only  to  the 
extent  of  increased  liveliness  and  rapidity  of  thought ;  generally, 
however,  there  is  incoherence. 

"  In  all  attacks  of  fury,  clear,  calm,  hearty  thought  is  quite 
impossible.  It  is  true  that  maniacs  can  occasionally,  by  means  of 
exhortation,  be  brought  for  a  short  time  to  their  senses,  and  be 
enabled  to  give  correct  answers ;  but  this  only  shows,  as  Jessen 
remarked,  the  possibility  of  temporary  remissions  and  intermis- 
sions; 'the  patient  is  not  delirious  when  he  speaks  sensibly,  and  he 
does  not  speak  sensibly  in  those  moments  in  which  he  is  delirious.' 
Neither  can  we  speak  of  the  absence  of  delirium  in  those  cases, 
which  we  have  described,  where  there  is  a  morbid  impulse  to 
commit  acts  of  violence.  Then  those  murderous  ideas  which  are 
not  at  all  in  accordance  with  external  moral  causes,  but  awakened 
by  a  morbid  disposition,  are  already  in  themselves  delirious  ideas, 
just  as  in  furious  mania  and  in  all  violent  emotion — for  example, 
rage — there  arise  new  ideas,  opinions,  and  conclusions,  correspond- 
ing to  the  morbid  disposition. 

"  Those  states  in  which  there  is  least  confusion  of  ideas  and 
delirious  perceptions,  in  which  there  is  the  greatest  amount  of 
logical  coherence  in  thought,  are  the  slight  states  of  exaltation 
which  we  have  described  in  the  foregoing  paragraph,  which,  how- 
ever, are  generally  merely  the  forerunners  of  the  commencement  of 
violent  mania.      For  these,  for  folie  raisonnante^  we  might,  as 

457 


§  557.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

Pinel  in  part  did,  use  the  name  mania  sine  delirio  ;  but,  as  in 
concrete  cases  it  is  of  little  practical  advantage  to  range  cases  under 
consideration  under  certain  names,  but  of  far  more  to  obtain  a 
psychological  appreciation  of  the  fundamental  morbid  psychical 
state,  the  circumstances  which  have  caused  its  development  and  its 
consequences,  it  is,  at  all  events,  more  advisable  to  allow  those 
obscure  names  which  provoke  the  curiosity  of  lawyers  and  other 
laymen  to  fall  completely  into  disuse."^ 

§  557.  "  Truly  unfortunate  has  it  been  for  our  professional 
ByMc-  speciality,"  remarks  an  experienced  American  psychoio- 
Farland.  gical  physician.  Dr.  McFarland,  "  that  the  term  '  moral 
insanity'  has  ever  had  mention.  The  phrase  itself  is  a  luckless  in- 
vention, not  only  liable  to  an  infinitude  of  misconception,  but  con- 
veying ideas  calculated  wholly  to  mislead.  It  is  as  if  there  was 
some  separate  kind  of  insanity,  located  in  some  '  terra  incognita' 
which  no  man  has  yet  discovered,  wholly  independent  of  the  brain 
or  any  of  its  functions  or  operations.  What  is  its  seat  or  what  are 
the  organs  of  its  abode  or  production,  are  questions  which  those 
who  employ  the  term  are  themselves  puzzled  to  answer. 

"  It  does  not  seem  to  be  considered  by  those  who  give  currency 
to  the  expression  that  its  whole  idea  implies  another  centre  of 
sensations,  emotions,  or  passions,  than  their  great  legitimate  one, 
the  brain.  In  the  first  place,  it  may  seriously  be  questioned  whether 
such  a  case  as  is  usually  described  to  set  forth  the  idea,  is  ever  actu- 
ally seen.  Experience  brings  before  the  mind  a  multitude  of  cases, 
not  actually  realizing  the  full  idea,  but  which  are  close  approxima- 
tions to  it.  Now  it  is  this  close  resemblance  between  cases  which 
do  exist  and  a  certain  ideal  of  disease  borne  in  the  imagination 
which  leads  us  astray.  The  small  difference  which  does  exist  be- 
tween the  case  which  every  one  has  in  hand  and  the  ideal  one,  is 
always  enough  to  destroy  the  value  of  the  instance.  It  has  always 
seemed  as  if  all  that  is  included  in  the  idea  of  moral  insanity  might 
be  better  disposed  of  by  a  closer  reference  to  phenomena  of  insanity 
which  are  of  every-day  occurrence.  Every  one  realizes  how  few 
of  the  delusions  of  the  insane  mind  are  ever  revealed,  and  how 
readily  they  are  revealed  under  one  set  of  circumstances  and  con- 
cealed under  others.     All  insane  asylums  abound  in  cases  of  un- 

'  Griesinger  on  Mental  Diseases.     Syden.  ed.  (1867),  §  140. 

458 


GENERAL  MORAL  INSANITY.  [§  558. 

questionable  mental  disease,  where  its  palpable  manifestations  are 
so  slight  that  the  unskilled  observer  would  doubt  its  existence.  A 
certain  suspicious  reserve,  a  mysterious  shyness  of  manner,  some 
haughtiness  of  bearing,  or  something  marked  and  singular  in  gait, 
or  tone  of  voice,  some  strange  attachment  to  a  particular  seat,  or 
special  stress  applied  to  the  doing  of  some  trivial  act,  may  be  all 
that  distino-uishes  the  individual  from  other  men.  Yet  one  guided 
by  experience  has  no  hesitation  in  declaring  such  cases  to  be  in- 
stances of  latent  delusion ;  and  is  prepared  for  the  sudden  exhibi- 
tion of  extreme  or  violent  acts  of  which  any  of  these  almost  unob- 
served antecedent  peculiarities  furnishes  the  explanatory  key.  In 
such  cases,  the  extent  of  the  disease  is  not  at  all  measured  by  what 
appears  on  the  surface. 

"  The  delusion  which  has  possession  of  the  mind  may  even  have 
no  outward  form  of  manifestation  whatever,  that  can  be  detected, 
and  yet  may  give  rise  to  all  those  singular,  inexplicable,  and  per- 
haps violent  acts,  which  a  failure  to  explain  by  any  anterior  indica- 
tions of  delusion  has  styled  moral  insanity.  It  is  very  easy  espe- 
cially with  those  much  conversant  with  the  insane,  to  conceive  a 
case  possessing  all  the  attributes  assigned  to  the  form  of  disease 
here  called  in  question ;  but  before  admitting  any  such  case  as  an 
existing  fact,  the  possibility  of  a  latent  delusion  underlying  its  char- 
acteristic perversities  of  conduct  should  be  deeply  considered."^ 

§  558.  Dr.  Jules  Falret,  in  an  able  paper  read  by  him  at  a  meet- 
ing of  the  Soci^t^  Medico-Psychologique,  in  January,    gyj^^gg 
1866,  argued  with  great  fulness  and  power  to  the  same    Falret. 
eflfect.2 

From  this  paper  we  make  the  following  extracts  : — 

"  I  shall  only  say  that,  for  my  part,  I  firmly  believe,  theoretically 
and  practically,  in  the  perfect  unity  of  action  of  the  various  mental 
faculties,  both  in  the  sane  and  the  insane.  In  reasoning  or  moral 
insanity  clinical  observation  proves,  in  my  opinion,  that  there  may 
be  a  great  excess  of  disorder  in  the  moral  and  instinctive  faculties, 
but  that  it  is  never  entirely  absent  from  the  intelligence.  Psycholo- 
gists do  not  admit,  in  the  healthy  mind,  the  distinct  existence  of  the 
several  faculties,  except  as  a  convenience  of  study.     These  faculties 

'  American  Journal  of  Insanity,  ^  gee  translation  in  23  Amer.  Journ. 
April,  1863.  of  Insanity,  406. 

459 


§  559.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

are  then,  in  reality,  only  different  modes  of  action  of  one  indivisible 
mind.  They  can  no  more  act  separately  in  a  state  of  health  than 
they  can  be  affected  separately  by  disease.  Several  faculties  always 
co-operate  for  the  production  of  each  one  of  our  mental  acts ;  and 
thus  every  one  of  these  is  a  product  of  the  simultaneous  action  of 
more  than  one  of  the  primitive  powers  of  the  mind.  So  in  disease, 
there  may  and  often  does  exist  a  predominant  lesion  of  a  single 
faculty,  but  there  is  never  an  affection  of  one  alone,  the  others  be- 
ing left  entirely  untouched. 

"  In  Germany,  the  medical  alienists  of  the  first  part  of  the  cen- 
tury, such  as  Reil,  Heinroth,  Hoffbauer,  etc.,  also  sustained  the 
reality  of  an  insanity  without  delirium ;  but  in  1822,  Henke,  the 
celebrated  founder  of  the  Journal  of  Legal  Medicine,  which  is  con- 
tinued to  the  present  time,  began  to  question  this  prevalent  doctrine. 
Since  that  period  the  contest  among  German  physicians  upon  this 
capital  question  has  been  very  animated ;  but,  little  by  little,  the 
opinion  first  maintained  by  Henke  has  finally  triumphed,  and  it  is 
to-day  the  dominant  one  in  Germany, 

"  Professor  Griesinger,  in  his  Treatise  on  Mental  Diseases,  asserts, 
in  effect,  very  distinctly,  that  there  is  no  such  thing  as  insanity 
without  lesion  of  the  understanding.  He  even  goes  so  far  as  to  say 
(p.  355),  that  the  creation  of  manie  sans  delire,  by  Pinel,  was  a 
misfortune  for  science. 

§  559.  "  In  France,  in  1810,  my  father,  in  his  thesis,  commenced 
the  reaction  against  the  opinion  of  Pinel,  by  denying,  absolutely, 
the  existence  of  manie  sans  delii^e.  Since  then.  Marc,  Georget,  and 
most  of  the  disciples  of  Pinel,  have  sustained  the  doctrine  of  their 
masters,  and  the  possibility  of  the  separate  lesion  of  the  intellec- 
tual and  instinctive  faculties  in  insanity  is  yet  generally  admitted 
among  us.  Nevertheless,  many  medical  alienists  have  begun  to 
abandon  this  extreme  position,  and,  for  my  part,  I  am  convinced 
that  the  more  rigorous  and  complete  study  of  the  facts  noAv  brought 
arbitrarily  together  under  the  name  o?folie  sans  delire  will  lead  all 
conscientious  observers  to  admit  the  correctness  of  that  doctrine 
which  is  to  me  a  demonstrated  truth,  namely,  that  there  does  not 
exist  in  mental  disease  an  isolated  lesion  of  the  feelings,  or  of  the 
instincts  ;  in  other  words,  that  there  is  no  such  thing  Qisfolie  sans 

delire.'^ 

460 


GENERAL  MORAL  INSANITY.  [§  563, 

§  560.  "  It  is  very  questionable,"  says  one  of  the  most  eminent 
and  experienced  of  American  alienists,  Dr.  Joseph  Work-  ^y 
man,i  "  whether  more  injury  than  benefit  has  not  been  Workman, 
rendered  to  the  interests  of  justice  and  humanity  by  the  earnestness 
with  which  the  moral  insanity  section  have  urged  their  views  ;  or, 
perhaps,  more  correctly  speaking,  by  the  confusion  which  they  have 
introduced  into  a  subject  requiring  to  be  investigated  with  rigid 
philosophic  exactitude."^ 

§  561.  It  is  also  proper  to  mention  that  the  theory  of  moral 
insanity,  as  such,  was  emphatically  repudiated  by  the  ^-  ^  a 

great  body  of  the  members  of  the  Association  of  Medical  by  Associa- 
Superintendents  for  the  Insane,  at  the  meeting  in  Wash-  superintend 
ington  on  April  20th,  1866,  reported  in  the  American  th^insane. 
Journal  of  Insanity  of  that  year.^ 

§  562.  Dr.  Liman's  edition  (1871)  of  Casper's  Medical  Juris- 
prudence is  the  highest  contemporaneous  medico-juridi-  g^  j^y 
cal  authority  in  Prussia,  if  not  throughout  all  Germany.  Liman. 
In  this  work  he  repeatedly  denounces  the  theory  of  an  insanity 
exclusively  moral  as  absurd,  as  repugnant  to  all  sane  psychology, 
as  utterly  without  any  inductive  basis  of  fact,  and  as  destructive  of 
sound  penal  jurisprudence.  To  the  same  effect,  he  reports  a  series 
of  decisions  of  governmental  experts,  being  the  most  eminent  men 
in  their  profession  in  the  German  states. 

§  563.  Dr.  A.  F.   Berner,  Professor  of  Jurisprudence  in  the 
University  of  Berlin,  may  be  viewed  as  one  of  the  most 
accurate  and  authoritative  of  German  jurists  in  this  de-    law  op- 
partment.      In  the  fifth  edition  of   his  Lehrhuch    des   doctrine  of 
Deutschen  Strafrechts,  published  in  Leipzig,  in  1871,  he    jn'^nitv  " 
states  the  German  law  on  this  subject  with  great  posi- 
tiveness,  and  this  is  reaffirmed  in  1877.     "To  constitute  responsi- 
bility," he  says,*  "  that  is  to  say,  penal  accountability,  it  is  neces- 
sary that  there  should  exist,  (1)  consciousness  of  self ;    (2)  con- 
sciousness of  the  exterior  world  ;  and  (3)  a  developed  consciousness 
of  duty.     In  these  incidents  of  intelligence  inner  freedom   is  in- 
volved ;  this  freedom  is  not,  therefore,  to  be  proved  independently 

*  19  Am.  Journ.  of  Ins.  406.  '  See  also  remarks  of  Dr.  Chipley, 

*  S.  P.  Review,  by  Dr.  And.  McFar-     supra,  §  175,  note  (o'). 
land,  ibid.  462,  <  §  77. 

461 


§  564.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

as  a  substantive  essential  of  responsibility.  A  lunacy  of  the  will 
(and  thus  a  derangement  of  freedom)  as  coexisting  with  underanged 
intellect  (inania  sine  delirio)  is  impossible." 

§  564.  Dr.  Krafft-Ebing,  a  German  psychological  physician  of 
j^   ^  high  eminence  both  for  psychological  acuteness  and  for 

EbiDg's  great  practical  experience,  was  for  years  physician  to 
moral  the  asylum  at   Illenau,  in   Baden,  one  of  the  largest 

insanity.  ^^^  most  admirable  in  Europe.  In  an  essay  in  Fried- 
reich's Blatter  for  September,  1871,  this  eminent  writer  distin- 
guishes "  moral  insanity"  from  sane  criminality,  by  the  fact  that 
the  illegal  act  in  the  former  is  involuntary,  springing  from  cerebral 
disease,  while  in  the  latter  it  is  voluntary,  the  reason  remaining 
unimpaired.  "  We  have  learned  from  experience,"  so  he  declares, 
"  that  immorality,  ethical  depravation,  and  criminal  proclivities, 
may  spring  from  physical  as  well  as  from  moral  grounds."  "  If 
Ave  can  perceive  general  signs  of  cerebral  disease,  and  trace  to  this 
disease  the  distinguishing  psychical  symptoms,  then  we  make  out 
the  distinction  between  a  voluntary  surrender  to  immoral  inclina- 
tions, and  an  immoral  criminal  life,  on  the  one  side,  and,  on  the 
other  side,  a  state  that  is  only  apparently  voluntary,  but  is  really 
conditioned  on  organic  causes."  As  tests  of  this  cerebral  disease, 
he  gives  the  following : — 

1.  Either  a  diseased  cerebral  organization  is  congenital,  or  a 
serious  cerebral  disease  is  shown  to  have  subsequently  attacked  the 
patient  and  produced  change  of  character.  In  the  former  case  the 
condition  is  one  of  moral  idiocy.  The  latter  is  technically  that  of 
"  moral  insanity."  The  former  is  traceable  to  hereditary  causes, 
to  epilepsy,  derangement,  drunkenness  in  the  parent.  When  the 
"  moral"  symptoms  result  from  cerebral  injury,  they  are  apt  to 
betray  their  progressive  character  in  the  prodromal  stages  of  de- 
rangement— melancholy,  incipient  paralysis,  hysterical  and  epilepti- 
cal  attacks.  The  close  connection  between  the  physical  and  the 
moral  in  this  respect  is  shown  by  the  fact  that  a  diseased  perversion 
of  the  moral  feelings  often  follows  attacks  of  mania,  of  epilepsy,  of 
apoplexy,  of  meningitis,  and  of  cerebral  disease  induced  by 
mechanical  injuries  and  by  alcoholic  excesses.  In  women,  ob- 
stetrical causes  operate  in  the  same  way. 

2.  In  most  cases  there  exist  in  the  sphere  of  the  nervous  sys- 
tem other  functional  disturbances  as  well  as  ph^^sical  deformities. 

462 


GENERAL  MORAL  INSANITY.  [§  564. 

Among  the  latter  may  be  noticed  malformations  of  the  skull, 
imperfections  of  the  senses,  deformities  in  the  extremities  {e.  g.  club- 
feet), strabismus,  obstructions  of  the  sexual  organs. 

3.  Cerebral  diseases,  resulting  from  the  peculiar  cerebral  organi- 
zation above  stated,  are  more  common  than  with  individuals  normally 
constituted. 

4.  There  is  a  peculiar  tendency  to  congestion  of  the  brain,  and 
with  this  are  coupled  capricious  and  motiveless  changes  of  disposi- 
tion, morbid  fixed  prejudices,  excessive  irritability,  and  vehement 
transient  passions. 

5.  There  is  a  perceptible  contraction  of  the  scope  of  the  intel- 
lectual renditions,  approaching  to  actual  imbecility,  though  this  is 
less  prominent  from  the  conspicuousness  of  the  moral  deficiency  in 
such  patients,  and  their  instinctive  cunning  and  viciousness. 

6.  With  these  symptoms  coexist  anomalies  of  the  natural  pas- 
sions, especially  of  the  sexual  instinct,  which  is  developed  in  morbid 
precocity,  and  strikes  out  in  directions  which  are  perverse  and  for- 
eign to  natural  life. 

7.  The  organic  basis  of  the  disease  {which  is  only  superficially  of 
an  exclusively  ethical  character^  exhibits  itself  in  features  which 
are  progressive  and  entirely  independent  of  outward  circumstances ; 
and  in  this  form,  certain  immoral  instincts,  such  as  those  for  drink, 
stealing,  and  vagabondage,  start  to  light  sometimes  with  marked 
periodicity. 

Hence,  to  constitute  "  moral  insanity,"  it  is  necessary,  according 
to  this  accomplished  observer,  that  it  should  be  the  result  of  ascer- 
tainable cerebral  disease.  So  far  from  the  mind  being  sane,  in 
this  state,  he  emphatically  argues  that  the  contrary  is  the  case. 
Insane  ideas  and  delusions  of  the  senses,  it  is  true,  may  not  exist ; 
but  he  declares  that  it  is  impossible  in  the  face  of  an  exact  clinical 
analysis,  to  maintain  that  the  intellectual  processes  run  an  undis- 
turbed course.  In  spite  of  the  cunning  and  energy,  he  declares, 
with  which  such  patients  seek  to  carry  out  their  abnormal  instincts, 
they  are  "  intellectually  weak,  unproductive,  incapable  of  practical 
business  or  orderly  activity,  are  marked  by  defective  capacity  for 
education,  are  one-sided  and  twisted  in  their  mental  action,  and  of 
very  contracted  judgment.  In  no  case  marked  by  this  obtrusive 
moral  debility,  is  there  wanting  some  intellectual  defect ;  and  most 
patients  of  this  class  are  intellectual  imbeciles."     "  It  is  worthy  of 

463 


§  565.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

notice,"  he  continues,  that  in  this  disease  "  there  is  a  peculiar  dis- 
order of  the  perceptive  faculties,  namely,  in  the  process  of  repro- 
duction, so  that  the  reproduced  representation  is  never  identical 
with  the  original  perception,  though  the  patient  holds  it  to  be  such. 
Hence,  he  appears  ethically  a  liar,  and  exhibits  his  supposed  ex- 
periences in  an  entirely  distorted  shape.  .  .  Here  it  is  that  an 
abstract,  a  formal,  intellectual  knowledge  of  right  and  wrong,  with- 
out ethical  capacity  for  the  same,  intervenes.  .  .  In  persons  of 
this  class  occur  further  formal  disturbances  of  the  perceptions — 
divergent  processes  of  ideas,  unique  associations  of  ideas,  peculiar 
fixed  fancies,  conceptions  emanating  from  abnormal  passions.  That 
which  in  such  persons  stands  out  in  marked  peculiarity,  and  which 
can  be  traced  only  to  intellectual  defect,  is  their  incapacity  to  distin- 
guish not  merely  what  is  immoral,  but  that  which  is  positively  and 
unnaturally  perverted,  and  the  injury  wrought  by  their  own  acts  to 
themselves,  coupled  with  their  neglect,  in  their  crimes,  of  the  ordi- 
nary rules  of  prudence,  and  a  want  (notwithstanding  many  marks 
of  mental  subtlety)  of  every  quality  of  self-control  and  self-gui- 
dance." 

§  565.  It  has  been  said  that  the  rejection  of  "  moral  insanity," 

mania  sine  delirio,  instinctive  mania,  etc.,  has  led  to  the 
Convicts  '  . 

only  rarely  conviction  of  a  number  of  persons  who  are  really  insane 
and  irresponsible,  but  who,  on  the  narrow  tests  adopted 
by  the  courts,  are  pronounced  sane.  This  assertion,  however,  is 
unsupported  by  fact.  In  Prussia,  "  moral  insanity,"  mania  sine 
delirio,  and  instinctive  mania,  are  repudiated  not  only  by  the  courts, 
but  by  the  eminent  physicians  who  act  as  authorized  medical  ex- 
perts. An  examination  of  the  reported  cases  down  to  1872  will 
show  that  the  tests  applied  emphatically  exclude  "  insanity  exclu- 
sively moral,"  and  "irresistible  impulse,"  from  the  category  of 
legitimate  defence.  Now  how  is  it  with  the  persons  so  convicted? 
Have  they,  in  any  number,  proved  to  be  insane?  The  Berlin 
Criminal-Gefangniss  records,  between  1841  and  1870  (30  years), 
189,167  prisoners.  Among  these  only  148  are  reported  as  insane. 
"In  a  great  criminal  prison,"  says  Dr.  Liman,  commenting  on  this 
return,  "  which  serves  as  the  sewer  of  the  Proletariat  of  a  great 
city,  and  which  receives  very  many  old  and  previously  convicted 
criminals,  there  is,  therefore,  on  an  average,  only  from  three  to  five 
lunatics  to  ten  thousand  prisoners  ;  and  among  all  the  reported  sick- 
464 


GENERAL  MORAL  INSANITY.  [§  566. 

nesses,  from  the  slightest  rheumatism  upwards,  were  only  three- 
tenths  out  of  a  hundred  insane.  This,  so  far  from  being  an  un- 
favorable proportion,  is  surprisingly  favorable.  We  have  here  a 
proportion  of  lunatics  to  our  population  of  criminals  that  does  not 
materially  differ  from  the  proportion  to  the  entire  population.  It 
is  true  the  Stadtvoigtei  (the  prison  referred  to)  is  a  prison  of  ordi- 
nary detention,  and  for  convicts  is  not  often  permanently  assigned. 
But  even  in  the  prisons  with  solitary  confinement,  so  far  as,  in  and 
out  of  Germany,  I  have  obtained  information  of  these  institutions, 
I  have  found  no  marked  increase  of  this  proportion  ;  and  so  far  as 
concerns  our  great  prison  of  this  class,  I  can  say  distinctly  that 
from  its  opening  to  the  present  day,  a  disproportionate  number  of 
lunatics  has  never  been  observed  there,  though  it  is  a  prison  assigned 
only  to  those  guilty  of  the  more  atrocious  crimes." 

§  566.  It  is  true  that  we  have,  as  disputing  these  conclusions, 
two  publications  (1870),  by  Dr.  J.  Thomson,  physician  to  the 
Scotch  Central  Penitentiary.^  It  is  maintained  by  Dr.  Thomson 
that  the  statistics  of  prisons  show  that  crime  is  sometimes  here- 
ditary ;  that  it  descends  coincidently  with  physical  defects ;  that 
there  is  such  a  thing  as  an  irreclaimable  criminal  class,  and  that  in 
this  class  crime  is  largely  mixed  with  insanity.  He  argues  that  in 
this  class  the  moral  sense  is  absolutely  wanting ;  and  as  proof  he 
cites  (1)  the  frequent  relapses  of  professional  law-breakers  ;  (2)  the 
tendency  of  such  persons  to  commit  crimes  when  in  prison  ;  (3)  their 
apparent  incapacity  for  remorse,  exhibited  by  their  quiet  sleep  and 
their  moral  apathy,  and  (4)  their  inaccessibility  to  educational  and 
reformatory  influences.  Their  proclivity  to  insanity  he  seeks  to 
show  by  their  disposition  to  cerebral  disorders ;  and  he  asserts  that 
in  the  Scotch  prisons  the  percentage  of  insanity  is  three  times 
greater  than  obtains  in  the  population  at  large.  But  the  replies 
to  this  are  obvious.  As  to  percentage  of  insanity,  the  results  are 
in  conflict  with  those  of  the  German  statistics,  which  cover  a  far 
wider  sphere,  and  are  based  on  observations  much  more  exact;  and 
even  if  we  take  Dr.  Thomson's  returns  as  exhaustive,  we  must  re- 
member that  unbridled  passions  have  of  themselves  a  tendency  to 
produce  insanity,  and  that  this  is  an  additional  reason  Avhy  passion, 
by  education    and  penal  discipline,    should  be  placed   under   re- 

■  Journal  of  Mental  Science,  Jan.  and  Oct.  1870. 

VOL.  I. — 30  465 


§  566.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

straint.^  Nor  should  it  be  forgotten  that  among  moral  agents  the 
power  to  do  right  implies  the  power  to  do  wrong ;  that  each  suc- 
cessive indulgence  of  guilty  passion  makes  the  temptation  to  future 
indulgences  stronger,  and  the  restraints  less  ;  that  the  knowledge 
that  character  is  lost  by  public  conviction  and  disgrace  removes  one 
of  the  most  important  of  such  restraints.  These  considerations, 
therefore,  instead  of  prompting  to  sentimentalize  crime  by  treating 
it  as  a  mere  disease,  should  lead  us  to  take  even  more  stringent 
measures  to  prevent  its  commission.  In  other  words,  the  very 
circumstance  that  crime  generates  crime,  if  not  insanity,  is  an 
additional  argument  for  penal  laws  which,  while  humane,  shall  be 
widely  published  and  firmly  executed. 

To  the  charge  of  cruelty  it  may  be  well  replied  (1)  that  a  lax 
view  of  crime,  at  a  period  when  the  character  is  forming,  is  apt  to 
lead  to  those  first  and  incipient  offences,  which,  if  the  view  here 
contested  be  correct,  generate  a  sequence  of  other  offences,  each 
surpassing  its  predecessor  in  facility  and  obduracy  ;  (2)  that  the 
alternative  proposed  by  Dr.  Thomson,  of  the  indefinite  incarcera- 
tion of  such  offenders  "  during  puberty ,"2  is  at  least  as  inhuman  as 
the  corrective  and  limited  imprisonments  that  a  due  administration 
of  justice  awards  ;  and  (3)  that  if  there  be  any  cruelty  in  penal 
jurisprudence  that  is  peculiarly  reprehensible,  it  is  that  which 
treats  any  class  of  offenders  as  absolutely  irreclaimable.  Nor  is 
this  latter  assumption  founded  on  fact.  Of  course  it  is  a  well- 
known  moral  law,  as  has  just  been  stated,  that  each  repetition  of 
crime  makes  reform  more  difiicult.  But  the  reports  of  the  American 
prison  discipline  societies  show  that  in  proper  conditions,  where  the 
convict,  on  discharge,  is  aided  in  his  efforts  to  move  into  a  new  sphere 
where  the  disgrace  of  his  convictions  will  not  drag  him  down,  re- 
forms have  been  frequent. ^ 

'  See  supra,  §§  115,  188,  403.  dora    which  were   formerly  quite   un- 

2  See  supra,  §  187.  known.     .     .     Suppose  they  all  know 

'  "  Madmen,"  says  Mr.  Stephen,  in  that  anyone  of  them  might  murder, 

liis    authoritative    work    on    English  ravish,  or  mutilate   any  other  without 

Criminal  Law,'*  "in  the  present  day,  the   fear    of    pxmishment,    the    result 

are  treated  with  a  degree  of  humanity  would  be  that  their  liberty  would  have 

and  intriisted  with  an  amount  of  free-  to  be  greatly  restrained,  and  that  they 

'  London,  1863,  p.  96.      See,  also,  articles  by  eminent  physicians  in  this  de- 
partment in  the  North  American  Review  for  January,  1882. 

466 


SPECIAL   MORAL   MONOMANIAS.  [§  569. 

II.     SPECIAL  "  MORAL  MONOMANIAS." 

1 .   At  present  repudiated. 

§  567.    "Moral  insanity,"  as  has  just  been  seen,  rests  on  the 
general  assumption  that  the  moral  and  the  mental  func-   Doctrine  of 
tions  occupy  separate    and  detached  compartments,  so    ^^^^f' 
that   one  can  be  insane   without  in   any  way  affecting   monoma- 

rr\i         T         ■  c  •    1  1  nias  as- 

the  other.  Ihe  doctrine  ot  special  "moral  monoma-  sumes  a 
nias"  assumes  a  still  further  subdivision.  Each  partic-  of  "moral 
ular  moral  instinct  has  its  own  subchamber,  in  which  insanity." 
it  dwells  in  like  seclusion,  so  that  insanity  on  its  part  not  only  does 
not  affect  the  mental  properties,  but  is  not  necessarily  communi- 
cated to  its  own  fellow  instincts  and  affections.  A  man  may  thus 
have  an  insane  and  irresistible  propensity  to  kill  or  to  steal,  for 
which  he  is  irresponsible,  though  not  merely  his  mind  as  a  whole, 
but  his  remaining  moral  functions  are  sane, 

§  568.    We  have  already  noticed  the  conclusive  psychological 
objections  which  apply  to  the   "compartment"  theory, 
so  far  as  it  assumes  that  the  moral  system  can  become    trine  dis- 
insane  while  the  mental  is  sane,  and  we  have  shown  that   former 
the  great  weight  of  present  medico-psychological  autho-   reasoning, 
rity  is  against  this  assumption.      Of  course,  all  reasoning  against 
the  general  separation  of  "moral  and  mental"  insanity  applies  a 
fortiori  to  the  assumption  that  each  particular  "moral  mania" 
dwells  in  non-contagious  isolation  in  its  own  particular  cell.      One 
or  two  authorities,  however,  bearing  on  this  particular  point  may 
now  be  added  : — 

§  569.  Ideler,  a  very  eminent  and  experienced  psychological 
physician,^  thus  emphatically  speaks:  "How  can  we  j.^^-.. 
pretend  to  separate  the  orbit  of  particular  fixed  ideas  authorities, 
(or  monomanias)  from  the  entire  sphere  of  mental  action 
in  such  a  way  as  to  decide  whether  the  origin  of  an  unlawful  pur- 
pose is  within  or  without  such  orbit  ?  Practically  it  is  impossible 
for  us  to  separate  the  diseased  from  the  healthy  portions  of  the 

would  have  to  be  treated  on  the  foot-     law,  but   of  animals,   to   be  governed  by 
ing,  not  of  moral  agents  to  be  governed  by   force.'''' 

■  Lehrbuch,  p.  2.')4. 

467 


§  572.]      MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

mind,  so  that  the  diseased  portion  should  be  punished,  and  the 
healthy  declared  irresponsible." 

§  570.  Dr.  Krafft-Ebing,  whose  eminence  as  an  observer  has 
Krafft-  ^6®^  noticed,  in  Holtzendorff's  Encyclopedia  (1871),  a 

Ebing.  work  of  the  highest  juridical   authority,  under  the  title 

Wahnsinn^  speaks  as  follows :  "  As  part  symptoms  of  general 
psychical  disease,  we  may  undoubtedly  class  morbid  impulses  to 
kill,  steal,  etc.  These  have  been  erroneously  called  monomanias, 
and  the  general  condition  of  disease  has  been  by  this  process  ig- 
nored. Tlie  doctrine  of  monomania  is  to-day  rightly  abandoned. 
It  is  based  on  the  erroneous  assumption  that  the  jjsychical  f  amities 
are  separate  from  each  other,  and  capable  of  isolated  action^^ 

§  571.  To  the  same  conclusions  Casper,  Griesinger,  and  Liman, 
in  the  works  already  quoted,  add  their  high  authority. 
Griesinger,  Indeed,  as  has  been  incidentally  shown,  and  will  pre- 
sently be  seen  more  fully,  the  doctrine  of  "  moral  mono- 
mania" is  now  left  with  scarcely  a  single  authoritative  adherent 
either  in  Germany,  England,  or  France.  ,  • 

2.  Psychological  absurdity  of  classification. 

§  572.  In  addition  to  the  general  objections  already  adduced  to 
the  doctrine  of  exclusively  moral  insanity,  we  may  here 

Analysis  .  ''  j  ^  xi         ^ 

should  be     naturally  notice,  when  we  are  asked  to  enter  on  a  still 

subjective  '.,...  ,  ,.        .,  , 

and  not  ob-  Hiore  mmute  division,  how  extraordinarily  vague  and 
jective.  fluctuating  is  the  analysis  which  this  new  process  involves. 
In  the  first  place  it  takes,  as  the  basis  of  analysis,  not  the  sub- 
ject, which  is  the  individual  man,  but  the  objects,  e.  g.,  houses  to  be 
burned,  goods  to  be  stolen,  other  men  to  be  killed,  to  which  the  in- 

'  See  infra,  §  608.  moral  idiocy,  and  lie  enumerates,   as 

2  It  is  true  that  this   distinguished  its  positive  features,  '' comparative  im- 

observer  afterwards  speaks  of  the  ex-  hecility,  with  an  entire  absence  of  all 

istence  of  a  state  which  he  thinks  pro-  moral  and  judicial  feelings,  a  complete 

per   to   call   the    "English   moral    in-  depravation  of  character  with  criminal 

sanity;"    but  it  will  be  seen  at  once  immoral  impulses  and  activities,  which 

that   the   "moral  insanity"   he  thus  can  easily  be  confounded  with  immo- 

recognizes   is  very  far   from  being   the  rality,  from  which,  however,  they  are  dis- 

mania  sine  delirio  of  Pinel,  or  the   in-  tinguished  hij  their  causes,  their  mode  of 

sanity  of  irresistible  impulse  of  later  growth,   their  progressive  course,   and  the 

writers.      For  he  gives,  as  its  German  periodicity  of  certain  symptoms.'''' 
rendering,    "  Sittlicher    Blodsinn,"  or 

468 


SPECIAL   MORAL   MONOMANIAS.  [§  573. 

dividual  man,  in  this  relation,  may  address  himself.  It  is  as  if, 
when  we  were  analyzing  steam,  we  should  speak  of  it  under  one 
name,  and  as  possessing  distinct  properties,  when  it  propels  a  boat, 
and  under  another  name,  and  possessing  other  properties,  when  it 
propels  a  locomotive.  If  such  a  course  should  be  taken,  we  would 
no  doubt  have  a  hundred  different  kinds  of  steam  to  talk  about,  and 
the  dissimilarity  of  these  various  distinct  powers  might  be  the  sub- 
jects of  much  subtle  discrimination.  But  such  a  discussion  would 
mislead  us  from  the  true  issue.  It  would  divert  us  from  analyzing 
the  properties  of  steam  itself,  which  are  invariable,  no  matter  what 
may  be  the  objects  to  which  it  may  be  turned,  to  investigating  what 
are  its  special  accidents,  and  to  investing  these  accidents  with  a  false 
autonomy.  So  it  has  been  with  the  doctrine  of  moral  monomania. 
The  subject  of  the  monomania  is  the  monomaniac  himself.  "Is  he 
insane  ?"  This  is  a  question  for  psychological  and  medical  investi- 
gation. The  object,  the  end  to  which  this  alleged  insanity  directs 
itself,  is  a  matter  for  exclusively  legal  examination.  "  Did  he  do 
this  thing  ?"  "  If  so,  supposing  him  to  be  sane,  what  is  the  pun- 
ishment ?"  To  decide  this  is  the  exclusive  function  of  the  courts  of 
law. 

§  573.  We  have  a  right,  also,  to  ask,  when  the  "  compartment" 
theory  of  monomanias  is  proposed  to  us,  that  the  com-    ciassiflca- 
partments  in  which  these  distinct  functions  dwell  in  such    tionofthe 

•     ^    L-         L^^     L  ^        •  •  ^  ■  ''  Dioral  in- 

isolation  that  one  may  be  insane  without  m  any  way  sanity" 
affecting  the  others — that  these  compartments  should  be  n^t°harmo- 
proved  to  be  stable,  fixed,  and  permanent.  Instead  of  ^^ious. 
this,  we  find  that  they  vary  according  to  the  views  of  each  theorist. 
Pinel  began  by  having  a  single  insane  chamber,  and  in  this  chamber, 
so  well  guarded  that  the  inmates  could  not  escape  to  disturb  the 
"  mind,"  dwelt  what  he  called  "  mayiia  sine  delirioy  Esquirol,  im- 
proving on  his  master,  declared  that  there  exists,  in  like  isolation, 
a  "  mayiie  instinctive,^^  which,  issuing  from  its  own  separate  apart- 
ment, can  go  forth,  commit  depredations  on  the  outside  world,  and 
then  furtively  return,  without  in  the  least  degree  disturbing  the 
equanimity,  awakening  the  repugnance,  or  even  exciting  the  atten- 
tion of  the  mind's  other  inmates,  which  go  on  in  their  normal 
work  with  clearness  and  logical  cohesion,  not  even  taking  notice  of 
the  extraordinary  neighbor  who  is  dwelling  under  their  common 
roof.     But  French  passion  for  classification  could  not  be  content 

469 


§  573.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

■with  this.  It  was  soon  argued  that  every  wrong  that  can  be  per- 
petrated must  have  its  own  particular  wrong-doer,  and  that  this 
wrong-doer  should  have  his  particular  exclusive  and  detached  abode. 
It  was  at  first  thought  that  it  be  enough  if  there  were  separate 
apartments  of  this  kind  for  certain  general  criminal  propensities  ; 
and  these  were  introduced  to  us  under  the  titles  of  Kleptomania, 
Homicidal  mania,  Aidoiomania,  Pjromania,  etc.  But  it  was  soon 
found  that  this  classification  was  not  adequate.  If  each  criminal  act 
requires  a  distinct  particular  propensity,  or  "  manie  instinctive,'''' 
and  if  each  of  these  propensities  is  to  be  a  separate  factor,  capable 
of  executing  its  work  without  either  implicating  the  mind  as  a  whole, 
or  even  disturbing  its  fellow  propensities,  then  the  old  theory  of 
cerebral  architecture  must  be  declared  imperfect,  and  we  must  be 
informed  of  a  new  plan,  containing  a  largely  increased  number  of 
separate  chambers  in  which  these  insane  factors  (instincts  mala- 
difs)  may  abide  in  the  requisite  isolation.  This  was  accordingly 
done,  and  as  new  crimes  started  up,  new  "  monomanias"  were  recog- 
nized and  duly  assigned  to  separate  abodes.  Thus  the  Marquise  de 
Brinvilliers,  feeling  an  irresistible  instinct  to  poison,  and  yet  being 
admitted  to  be  entirely  sane,  gave  rise  to  a  new  "  manie  instinctive," 
called  Toxicomanie,  and  which  was  announced  to  coexist  not  only 
with  mental  sanity,  but  with  morality  and  amiability  in  everything 
except  poisoning. 

About  the  time  when  among  French  alienists  the  fashion  of  setting 
apart  new  varieties  of  monomanias  was  at  the  highest,  arose  the 
Piqueurs,  who  ranged  the  streets  of  Paris,  cutting  the  clothes  of 
women  and  inflicting  other  injuries  ;  and  forthwith  this  epidemic 
mischief  was  declared  a  "  monomania."  The  "  Piqueurs"  were 
imitated  by  the  "  Msedchenschanders"  of  Augsburg,  who,  in  1820 
and  afterwards,  infested  the  streets  of  that  town,  and  would  rush 
out  from  their  lurking  places,  inflict  a  slight  stab  on  young  girls 
with  some  sharp  instrument,  and  then  retreat.^  There  is  reason  to 
believe  that  the  chief  ofibuder  in  the  latter  performances  was  really 
insane  ;  and  such  certainly  was  the  case  with  the  perpetrator  of  analo- 
gous outrages  which  some  years  since  were  committed  in  New  York.^ 

'  See  infra,  §  621.  York,  in  October,  1849.     He  was  shown 

2  The  case  referred  to  is  that  of  a  to   have    left  his    house    immediately 

young  man,  named  Charles  H.  Sprague,  after  breakfast  to  go  to  his  business, 

who  was  tried  in  Kings  County,  New  whidli  was  that  of  a  printer ;  to  have 

470 


SPECIAL   MORAL   MONOMANIAS. 


[§  573. 


This  can  hardly,  however,  be  said  of  the  "  Zopfabschneiders"  of 
1858,  Avho,  in  some  of  the  towns  of  South  Germany,  amused  them- 


overtaken  a  young  lady,  to  have  thrown 
her  down,  to  have  snatched  a  shoe 
from  one  of  her  feet,  and  to  have  run 
away.  She  wore  a  chain  and  locket 
and  other  jewelry  in  sight ;  but  he  did 
not  attempt  to  take  anything  except 
the  shoe,  nor  to  do  violence  to  her  per- 
son in  any  way.  He  then  proceeded 
round  a  square,  and  on  his  way  called 
at  his  wife's  father's,  and  asked  if  his 
father  was  in  town,  a  matter  as  to 
which  he  was  perfectly  well  informed. 
He  then  left  the  house,  came  directly 
back  to  the  very  spot  where  he  had 
just  taken  the  shoe,  and  continued  on, 
without  stopping,  to  his  place  of  busi- 
ness. He  was  tried  for  highway  rob- 
bery, and  on  trial  the  defence  of  in- 
sanity was  set  lip.  "The  principal 
witness  was  the  defendant's  father,  a 
clergyman  of  the  highest  respectability, 
whose  testimony  was  coi-roborated  in 
every  particular  by  several  other  wit- 
nesses ;  indeed,  by  all  the  court  thought 
it  worth  while  to  have  brought  for- 
ward. Charles  Sprague^s  paternal  great- 
grandfather, grandmother,  great-uncle,  and 
three  great-aunts — being  four  out  of  a 
family  of  six — and  a  cousin,  are  or  have 
been  insane.  He  had  himself  in  youth  re- 
ceived several  severe  blows  and  falls  upon 
the  head,  and  within  a  year  from  the  last 
fall  he  began  to  suffer  headache,  and  his 
friends  observed  an  unnatural  prominence 
of  the  eye,  with  varying  dulness  and  glassi- 
ness  of  these  organs.  Simultaneously 
with  this,  Sprague  began  to  exhibit  a 
propensity  to  abstract  and  conceal  the 
shoes  of  the  female  members  of  his 
family.  In  the  majority  of  instances 
one  shoe  only  was  missed,  and  it  was 
usually  found  about  the  house,  having 
been  thoroughly  soaked  with  water, 
twisted  up  like  a  rope,  and  then  hid 
away  between  a  feather  and  straw  bed, 


or  in  the  depths  of  a  trunk,  or  hung 
up  in  a  closet  with  garments  conceal- 
ing it. 

"  Suspicion  at  first  rested  upon  the 
servants,  but  the  real  agent,  being  de- 
tected and  questioned,  remained  silent, 
and  on  subsequent  explanations  gene- 
rally denied  the  possibility  of  his 
agency  until  within  the  last  six  years. 
During  this  period,  when  remonstrated 
with  on  his  singular  habit,  he  would 
admit  that  he  must  have  taken  the 
shoe,  though  he  had  no  recollection  of 
it,  and  did  not  know  for  what  he 
wanted  it.  The  intermissions  in  this 
practice  have  at  no  time  exceeded 
three  or  four  months  at  one  time. 

"  After  the  practice  became  estab- 
lished, Sprague's  mother  and  sisters, 
and  the  female  servants,  habitually 
locked  up  their  shoes  ;  yet  occasionally 
one  was  missed  and  discovered  twisted 
and  crumpled  after  being  wet.  It  was 
rumored  at  one  time  in  the  family  that 
Sprague  had  attempted  to  remove  the 
shoe  from  the  foot  of  a  domestic,  and 
his  sister  once  alarmed  her  father  at 
night  on  finding  him  abstracting  her 
shoes  from  a  locked  drawer.  In  the 
early  part  of  the  year  of  the  trial,  two 
females,  one  residing  in  Brooklyn,  had 
a  shoe  or  shoes  taken  from  their  feet 
while  walking  in  the  street  in  the  even- 
ing, but  the  off"ender  has  never  been 
certainly  known."  —  (1  Beck,  Med. 
Jur.,  ed.  of  1860,  p.  732.)  There  was 
no  monomania  about  this  case.  It 
was  general  insanity  manifesting  itself, 
among  other  ways,  in  this  particular 
caprice.  And  the  only  proper  disci- 
pline for  such  case,  if  general  insanity 
existed,  was  that  compulsory  seclusion 
from  society  which  general  insanity 
requires. 

471 


§  574.]      MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

selves  by  darting  out  in  the  dark  on  women  who  wore  the  long 
tresses  of  hair  then  in  fashion,  and  cutting  off  and  pocketing  these 
tresses.  These  propensities  were  epidemic,  and  were  declared  by 
the  perpetrators  to  be  beyond  repression  when  the  fancy  came  on. 
It  was  soon,  it  is  true,  found  that  a  little  cudgelling  caused  the 
"  propensity"  to  subside.  It  did  not  subside,  however,  until  it  had 
for  a  while  been  enfranchised  as  a  "  monomania,"  to  the  great  dis- 
turbance of  public  decency  and  public  peace. 

§  574.  The  disinclination  felt  by  intelligent  but  depraved  French- 

-r.  „  ,  „  women  to  rear  children — the  "  instinct"  which  leads 
Defects  of 

ciassiflca-  them  to  destroy  such  children,  has,  even  by  so  acute  a 
physician  as  Boileau  de  Castelnau,^  been  set  apart,  under 
the  title  of  Misopedie,  as  a  distinct  mania,  capable,  like  other  manias, 
of  doing  its  work  without  implicating  or  embarrassing  the  mother 
herself,  who  is  only  an  innocent  victim  of  this  mania,  being  in  all 
other  respects  "  amiable"  and  "  sane."  Nor  does  the  process  stop 
here.  If  the  theory  be  right,  there  must  be  a  constant  readjust- 
ment of  the  cerebral  system,  so  as  to  let  in  new  duly  authenticated 
and  verified  "  monomanias."  But  if  such  readjustment  be  absurd, 
then  the  theory  falls. 

So  the  same  destructive  argument  may  be  drawn  from  the 
inexhaustive  capriciousness  of  the  classifications  which  have  been 
given  by  philosophers  of  this  school.  If  we  are  to  have  a  classifi- 
cation at  all,  we  have  a  right  to  demand  that  it  should  be  complete. 
Nor,  we  may  well  add,  if  each  passion  is  to  have  an  exclusive 
compartment  to  itself,  in  which  it  may  become  insane  without  affect- 
ing its  neighbors,  can  we  conceive  why  such  an  accommodation  is 
refused  to  gluttony.  Gluttony  is  as  wide  spread  and  eager  a 
passion  as  are  any  of  those  which  had  been  elevated  to  the  rank  of 
monomanias.  The  history  of  all  nations,  the  rudest  as  well  as  the 
most  cultivated,  records  its  prowess.  The  African  kings,  described 
to  us  by  Speke,  who  gorged  to  such  an  extent  that  they  finally 
became  too  gross  to  move,  are  not  more  conspicuous  illustrations  of 
the  powers  of  gluttony  than  was  Cambac^res,  who  spent  half  his  life 
at  the  dinner  table,  and  made  the  dinner  table  the  supreme  end  of 
the  state.     Domitian,  when  Rome  was  needing  the  full  wisdom  and 

•  Annales  medico-psychologiques,  1861,  vii.  p.  553. 

472 


SPECIAL   MORAL   MONOMANIAS.  [§  575. 

energy  of  her  sons,  convoked  the  senate  to  determine  how  a  turbot 
was  to  be  cooked : — 

"  But  when  was  joy  unmixed  ?  no  pot  is  found 

Capacious  of  the  turbot's  ample  round  : 

In  this  distress  he  calls  the  chiefs  of  state, 

At  once  the  objects  of  his  scorn  and  hate" — 
"  The  Emperor  now  the  important  question  put, 

How  say  ye,  Fathers,  shall  the  fish  be  cut  ?" 

Charles  V.  was  in  most  respects  a  great  contrast  to  Domitian. 
He  was  wise,  tolerant,  laborious,  and  inured. to  hardships  when 
great  public  ends  were  to  be  achieved.  Yet  Charles  V.,  in  his 
retirement,  would  push  aside  the  couriers  who  came  to  him  from 
his  son  entreating  advice,  in  order  to  consult  with  those  who  were 
to  bring  delicacies  to  the  table  ;  and  shortened  his  life  because,  in 
defiance  of  his  physician's  advice,  he  would  not  shorten  his  meals. 
"  A  very  considerable  percentage  of  the  miseries  of  mankind,"  says 
a  late  (1871)  ingenious  writer,'  "  may  be  said  to  spring  from  this 
source  alone.  Peevishness,  ill-humor,  domestic  breezes,  hypo- 
chondria, ghost-seeing,  melancholy,  suicide  itself,  with  many  other 
evils,  may  often  be  traced  to  the  poor  digestive  sac,  when  wearied 
and  insulted  by  the  hard  work  to  which  it  is  condemned."  Per- 
haps the  reason  why  gluttony  has  not  been  spoken  of  as  irresistible, 
and  assigned  to  a  place  among  the  monomanias,  is  the  varieties  it 
assumes,  and  the  consequent  necessity  of  further  subdivision. 
"Dipsomania"  may  be  called  a  kind  of  gluttony,  and  if  so  would 
have  to  be  deposed  from  its  place  as  a  monomania  in  chief.  "With 
it,  but  with  separate  compartments,  would  have  to  be  ranked  the 
passion  for  opium,  and,  if  recent  statements  are  to  be  relied  on,  the 
passion  for  chloroform.  Nor  could  we  admit  these  without  assign- 
ing distinct  phases  to  passions  for  distinct  articles  of  food. 

§  575.  A  still  more  striking  illustration  of  the  inadequateness 
of  this  classification  is  to  be  found  in  its  omission,  among  the 
alleged  irresistible  impulses,  of  that  for  gaming.  Certainly  if 
"  pyromania,"  an  impulse  which  at  the  best  is  occasional  and  rare, 
is  to  be  recognized  as  a  distinct  insanity,  requiring  a  distinct  mental 
compartment,  at  least  equal  distinction  should  be  assigned  to  the 
passion  for  gaming,  a  passion  far  more  widely  spread,  and  at  least 
equally  irresistible.     Several  instances  are  reported  in  French  his- 

•  Hargreaves,  Blunders  of  Vice  and  Folly,  p.  24. 

473 


§  575.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

tory,  of  public  men  who  in  their  early  career  gave  promise  of  great 
political  usefulness,  who  sacrificed  everything  to  this  passion,  and  be- 
came ultimately  miserable  outcasts.  Nor  is  this  peculiar  to  France. 
Mr,  Fox,  as  remarkable  for  strong  sense  as  he  was  for  argumentative 
vigor,  squandered,  early  in  life,  ^£154,000  given  him  by  his  father, 
on  the  gaming  table,  which  he  did  not  desert  until  his  life  was 
nearly  spent ;  and  such  was  his  infatuation,  that  he  gave  up  whist, 
in  which  his  skill  made  him  a  winner  in  the  long  run,  for  hazard, 
in  which  he  knew  that  in  the  long  run  he  must  lose.  Sir  John 
Bland  and  Lord  Mountford,  as  Horace  Walpole  tell  us,  dissipated 
in  gaming  their  entire  estates,  aud  then  committed  suicide.  The 
Marquis  of  Drogheda  "ruined  himself  over  and  over  again,  till  he 
Avas  obliged  to  live  on  a  small  annuity  paid  quarterly.  As  soon  as 
he  received  his  money  he  lost  it  at  the  gaming  table,  and  after- 
wards had  to  live  in  the  greatest  privation  till  quarter-day  came 
again,  when  the  allowance  was  dissipated  in  the  same  way."     "  A 

certain  Captain  H ,  after  losing  a  considerable  sum,  would  walk 

up  to  a  mirror,  and  begin  a  stormy  colloquy  with  his  image.  The 
substance  reminded  the  shadow  of  the  resolutions  he  had  made  ;  he 
shoAvered  doAvn  abusive  epithets  upon  himself,  and  became  so  ex- 
cited that  he  Avould  assume  a  menacing  attitude  and  appear  as  if  he 
Avere  about  to  inflict  chastisement  upon  the  unfortunate  reflection. 
This  Avas  done  in  a  public  saloon,  and  in  the  presence  of  a  large 
company."  "  Sometimes  the  foolery  of  the  gamester  rises  to  a 
height  which  seems  to  be  positively  preternatural.  There  Avas 
once  a  person  of  the  name  of  Shelton,  of  some  note  as  a  pugilist  in 
his  day,  who  indulged  in  betting  at  pitch  and  toss  to  such  an  extent, 
that  one  day,  having  lost  all  his  earthly  goods,  he  went  on  to  stake 
his  very  life.  He  lost :  will  it  be  believed  that  the  man  cheerfully 
proceeded  to  a  lamp-post  and  hung  himself  to  the  projecting  bar  ?"^ 
Cases  of  this  character  are  not  rare.  Among  civilized  nations — 
putting  aside,  for  the  present,  barbarous  lands  in  Avhich  gaming 
often  exercises  an  influence  equally  potent — Ave  may  assume  that 
there  are  a  thousand  gambling  houses,  each  with  its  body  of  fre- 
quenters, numbering  from  fifty  to  a  hundred.  We  may  take  as 
favorable  illustrations  those  places  of  better  resort,  Avhere  strict 
police  regulations,  and  social  restraint  generated  by  the  compara- 

'  Hargreaves,  Blunders  ofVice  and  Folly,  London,  1871,  p.  47. 

474 


SPECIAL   MORAL   MONOMANIAS.  [§  576. 

tively  high  positition  of  the  participants,  maintain  a  superficial 
decorum.  Yet,  even  under  this  mask,  no  one  can  visit  these  tables, 
without  seeing  that  the  habitual  gamesters  who  frequent  them  form 
a  distinct  as  well  as  a  numerous  class  of  men,  far  more  numerous 
than  "  kleptomaniacs"  or  "  pyromaniacs,"  and  that  they  are  driven 
from  risk  to  risk  by  a  frenzy  which  has  at  least  as  high  claims  to 
be  considered  irresistible  as  any  which  modern  psychology  has 
brought  to  light.  They  know  that  gaming  in  the  long  run  will  ruin 
them.  They  feel  that  the  very  process  is  consuming  them  by  its 
fires,  yet  they  persevere  till  ruin  comes,  and  then  give  themselves 
up  to  the  pauper's  misery,  or  the  suicide's  grave.  Why  then  is  not 
the  morbid  passion  for  gaming  announced  as  a  "monomania"? 
What  is  there  in  it  less  vehement,  less  general,  less  marked,  than 
the  other  "  monomanias"  which  have  hereafter  to  be  noticed  ? 

§  576.  If  this  classification  is  minute  enough  to  give  us  "  Toxi- 
comanie"  and  "  Misopedie,"  and  to  embrace  "  Piqueurs"  and 
"  Msedchenschanders,"  why  does  it  find  no  place  for  gluttony  and 
gaming  ?  If  it  has  no  place  for  gluttony  and  gaming,  what  right 
has  it  to  demand  the  recognition,  as  "  monomanias,"  of  other  pas- 
sions, certainly  not  more  abnormal,  or  more  pregnant  with  what  are 
called  "  monomaniac"  characteristics  ?  And  if  the  classification 
this  theory  presents  be  thus  fluctuating  and  defective,  what  claims 
has  the  theory  to  judicial  recognition?^ 

It  may,  indeed,  scarcely  need  so  copious  a  recapitulation  as  the 
above  to  show  that  the  theory  of  special  "  moral  monomanias"  is 
not  only  unphilosophical  but  impracticable.  But  in  view  of  the 
persistency  with  which  this  view  is  still  pressed  on  the  courts,  it  is 
important  to  show  that,  even  if  the  position  is  true  as  theory,  it  is 
false  in  practice.  And  then,  if  it  appear  that  even  in  the  most 
comprehensive  classifications,  there  remain  a  number  of  passions 
and  impulses  without  their  necessary  exclusive  abodes  ;  if  it  also 
appear  that  these  abodes,  even  when  designated,  instead  of  having 
permanent  inmates,  are  occupied  capriciously  by  a  series  of  visitors, 

'  The  following  new  manias  may  be  at  Nuremburg  in  1877,  a  new  primary 
here  noticed:  Agoraphobia,  19  Journ.  form  of  insanity  was  recognized,  called 
Ment.  Sci.  456  ;  Metaphysical  mania,  Walmsinn.  See  the  Psychiatr.  Central- 
see  23  Journ.  Ment.  Sci.  608  ;  Amhi-  blatt,  Oct.  and  Dec.  1877,  and  an  ar- 
tious  mania,  18  id.  431.  At  a  meeting  tide  on  Necrophilism  in  20  Journ. 
of  the  German  Verein  and  physicians  Ment.  Sci.  551, 

475 


§  577.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

appearing  from  time  to  time  with  new  names  and  new  attributes — 
this  throws  just  discredit  on  the  theory  as  a  theory.  If  we  can 
establish  the  entire  isolation  of  the  instincts  in  question,  then  we 
can  conceive  of  one  being  insane  without  affecting  the  other.  But 
when  we  find,  that,  so  far  from  such  isolation  being  established, 
these  instincts  cannot  even  be  separately  numbered,  then  their 
separate  existence  must  be  regarded  as  unproved.^ 

III.     PROMINENT   FORMS    OF    SUPPOSED    MONOMANIA. 

§  577.  It  remains  to  notice  the  more  prominent  forms  of  supposed 
F  rm  f  monomania.  They  will  be  grouped  under  the  following 
monomania   heads,  not  because  they  have  any  psychological  basis  as 


'  "  The  gravity  of  tliis  question  does 
not  diminish  when  we  consider  the 
fact  that  the  alleged  insane  class  is 
increasing  out  of  all  proportion  to  the 
general  increase  of  the  population  of 
the  country ;  and  with  this  increase  of 
the  insane  comes  a  more  liberal  defini- 
tion of  insanity  every  year,  constantly 
growing  wider  and  wider,  until  per- 
sons who  were  formerly  considered 
perfectly  sane  are  now  most  hospitably 
taken  within  the  fold  of  the  irresponsi- 
ble, and  assigned  to  a  ward  or  class  in 
the  vast  nomenclature  or  nosology  of 
modern  insanity — classes  and  divisions 
numerous  enough  and  wide  enough  to 
embrace  the  entire  human  family,  sane 
and  insane.  We  find  in  the  '  moral' 
department  alone  divisions,  subdivi- 
sions, and  double  subdivisions  as  ex- 
tensive as  the  propensity  of  the  human 
family  to  commit  crime,  to  wit :  homi- 
cidal mania,  kleptomania,  oikeioma- 
nia,  suicidal  mania,  fanatico-mania, 
politico-mania,  etc.  etc.,  without  end. 
To  the  old  and  constantly  increasing 
nomenclature  of  insanity  of  the  books 
there  has  lately  been  added  another, 
covering  the  loss  of  memory.  To  es- 
cape being  classed  with  the  insane, 
one  must  have  a  good  memory.  Whe- 
ther he   must   come   up   to   the  high 

476 


standard  of  Macaulay,  who  could  re- 
cite the  '  Times'  newspaper,  adver- 
tisements, and  all,  after  reading  it ;  or 
of  Niebuhr,  who  restored  from  memory 
a  burnt  book  of  public  accounts  ;  or  of 
Leibnitz,  who  could  repeat  from  me- 
mory the  whole  of  the  jEneid,  we  are 
not  told.  The  'London  Lancet,'  from 
which  we  have  already  quoted,  says  on 
this  subject :  '  At  the  present  moment, 
insanity  would  seem  to  be  anything 
experts  choose  to  make  it.  There  is 
no  clearly  formulated  idea  of  sanity, 
and  the  least  '  strangeness'  or  weak- 
ness is  held  to  be,  if  the  general  cir- 
cumstances appear  to  render  the  as- 
sumption convenient,  a  sufiicient  proof 
of  insanity  to  deprive  an  individual  of 
his  liberty  and  social  privileges.'  (The 
learned  editor  might  have  added  with 
equal  truth,  '  or  make  him  irresponsi- 
ble for  murder.')  The  '  Lancet'  con- 
tinues :  '  A  master  in  lunacy  has  just 
ruled  that  loss  of  memory  is  to  be  re- 
garded as  evidence  of  insanity,  al- 
though at  least  one  experienced  expert 
medical  practitioner — not  a  specialist — 
had  no  hesitation  in  declaring  that  the 
patient,  or,  as  we  would  prefer  to  say, 
victim,  was  not  insane.'  " — Dr.  Elwell, 
in  North  Am.  Rev.,  Jan.  1882,  p.  8. 


HOMICIDAL    MONOMANIA.  [§  578. 

distinct  manias,  but  simply  because,  as  incidents  of  general  insanity, 
it  is  convenient  to  view  them  in  this  order. 

1.  "Homicidal  mania^'  (morbid  propensity  to  kill). 

2.  "Kleptomania'^  (morbid  propensity  to  steal). 

3.  "Pyromania"  (morbid  incendiary  propensity). 

4.  "Erotomania"  (morbid  sexual  propensity). 

5.  " Pseitdonomania"  (morbid  lying  propensity). 

6.  " Oikeiomania"  (morbid  state  of  domestic  affections). 

7.  "Suicidal  mania''  (morbid  propensity  to  self-destructiod). 

8.  "Dipsomania"  (morbid  propensity  for  drink). 

9.  " Fanatico-mania"  (morbid  state  of  the  religions  feelings). 
10.  "Politico-mania"  (morbid  state  of  political  feeling). 

1.  Homicidal  monomania. 

§  678.  '■'■Homicidal  monomania''''^  is  not  to  be  confounded,  ac- 
cording to  Marc,  with  the  sudden  murderous  impulse  ^^^  destruc 
with  which  madmen  are  occasionally  seized  under  the  tivefea- 
influence  of  revenge,  or  of  some  other  passion  which  con- 
trols them ;  and  it  is,  in  like  manner,  important  to  distinguish  it 
from  delirium.  Esquirol  understands  the  term  to  mean  a  partial 
insanity,  distinguished  by  more  or  less  violent  cravings  of  a  mur- 
derous nature ;  and  subdivides  it  into — 

a.  Cases  in  which  the  murder  is  caused  by  a  firm  but  insane 
conviction — the  monomaniac  being  carried  away  by  an  avowed  but 
irrational  motive,  and  always  manifesting  conclusive  signs  of  a  par- 
tial insanity  of  the  understanding  or  the  feelings. 

h.  Cases  in  which  the  monomaniac  displays  no  perceptible  distur- 
bance of  the  understanding  or  the  feelings,  but  is  carried  away  by 
a  blind  instinct,  by  an  inexplicable  sometJmig,  which  impels  him  to 
the  commission  of  murder.  As,  however,  is  very  pertinently  re- 
marked by  Schiirmayer,  the  distinctions  and  definitions  by  Marc 
and  Esquirol  do  not  advance  us  in  the  field  of  forensic  psychology 
a  single  step  beyond  what  we  had  already  reached  by  means  of  the 
physiology  of  insanity  in  general ;  while  their  assumed  homicidal 
monomania  falls,  on  the  one   hand,  into  the  Avell-known  rank  of 

I  Siebold's    Gericht.    Med.    §    219  ;  Gott.  1835  ;  Artikel  Mania  sine  delirio, 

Hoffbaur's   Psychologie,   §    122  ;    Con-  in  Jesse's  Encyclop.  Worterb.  der  Med. 

radi's    Commentatio    der    mania   sine  Wissench.    Bd.    22,    Berlin,     1840,    p. 

delirio,  Gott.  1827, 4  ;  Conradi's  Beitrag  410. 
zur  Geschichte  der  Manie  sine  delirio, 

477 


§  579.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

mania,  and  is  easily  recognized  and  considered  as  one  of  its  acci- 
dental manifestations,  or,  on  the  other  hand,  draws  into  the  circle 
of  its  definition  every  murder  of  which  the  author  is  in  a  condition 
to  assert,  that  he  was  compelled  to  commit  it  by  an  impulse  which 
he  found  to  actuate  him.^ 

§  579.  Dr.  Ray,  among  all  Anglo-American  authorities,  gives 
Approved  ^^i^  species  of  mania  the  widest  sweep.  "  It  was  first 
by  Ray.  distinctly  described  by  Pinel,"  he  says,  "  and,  though 
its  existence  as  a  distinct  form  of  monomania  was  for  a  long  time 
after  doubted,  it  has  subsequently  been  admitted  by  the  principal 
writers  on  insanity — by  Gall  and  Spurzheim,  Esquirol,  Georget, 
Marc,  Andral,  Orfila,  and  Broussais,  in  France  ;  by  Connelly, 
Combe,  and  Prichard,  in  England  ;  by  Hoff'bauer,  Platner,  Ettmul- 
ler,  Henke,  and  Friedreich,  in  Germany  ;  by  Otto,  of  Copenhagen  ; 
and  by  Rush,  in  this  country.  It  has  received  the  various  appella- 
tions of  monomanie  homicide,  monomanie  meurtri^re,  mela7ieTiolie 
homicide,  homicidal  insanity,  instinctive  monomania.  Esquirol,  in 
his  valuable  memoir,  first  published  in  the  shape  of  a  note  in  the 
French  translation  of  Hoffbauer's  work,  observes,  that  homicidal 
insanity,  or  monomanie  homicide,  as  he  terms  it,  presents  two  dis- 
tinct forms,  in  one  of  which  the  monomaniac  is  always  influenced 
by  avowed  motives  more  or  less  irrational,  and  is  generally  regarded 
as  mad ;  in  the  other,  there  are  no  motives  acknowledged,  nor  to 
be  discerned,  the  individual  being  impelled  by  a  blind,  irresistible 
impulse.  It  is  with  the  latter  only  we  are  concerned,  for  the  other 
is  clearly  a  form  of  partial  intellectual  mania ;  but  as  this  division 
has  not  been  strictly  made  by  nature,  cases  often  occurring  that  do 
not  clearly  come  under  either  category,  the  subject  will  be  better 
elucidated  by  noticing  all  the  forms  of  this  affection,  and  seeing 
how  intimately  they  are  connected  together." 

'  See    supra,    §§    146-162,    163-189.  ibid.  107 ;  Report  of  Trial  of  People  v. 

See    an    interesting    treatise    by   Dr.  Griffin,  ibid.  227 ;  People  v.  Sprague, 

Woodward,  1  Am.  Journ.  of  Ins.  322.  6  ibid.  254;  Com.  v.  Furbusli,  9  ibid. 

See   also  People  v.  Kleim,  reported  2  151.    For  an  interesting  though  desul- 

Am.  Journ.  of  Ins.  245  ;  Abner  Baker's  tory  sketch  of  the  law,  see  Mr.  Warren's 

Case   Reviewed,   3   ibid.  26 ;    Trial   of  Remarks  on  Oxford's    and  McNaugh- 

Rabello,  reported,  ibid.  41  ;  an  Essay,  ten's  cases,  7  Am.  Journ.  of  Ins.  318 ; 

by  Dr.  Aubanel,  on  the  same   point,  Black.  Mag.  for  Nov.  1850. 

478 


HOMICIDAL   MONOMANIA.  [§  580. 

§  580.  The  same  distinguished  authority  suggests  the  following 
tests: —  rr  4- 

lests  sug- 

I.  In  nearly  all,  the  criminal  act  has  been  preceded  gestedby 
either  by  some  well-marked  disturbance  of  the  health, 
originating  in  the  head,  digestive  system,  or  uterus,  or  by  an  irri- 
table, gloomy,  dejected  or  melancholy  state  ;  in  short,  by  many  of 
the  symptoms  of  the  incubation  of  mania.  The  absence  of  particulars 
in  some  of  the  cases  we  find  recorded  leaves  us  in  doubt  how  gene- 
ral this  change  really  is ;  but  a  careful  examination  would,  no 
doubt,  often,  if  not  always,  show  its  existence  where,  apparently, 
it  has  never  taken  place. 

II.  The  impulse  to  destroy  is  powerfully  excited  by  the  sight 
of  murderous  weapons,  by  favorable  opportunities  of  accomplishing 
the  act,  by  contradiction,  disgust,  or  some  other  equally  trivial  and 
even  imaginary  circumstance. 

III.  The  victims  of  the  homicidal  monomaniac  are  mostly 
either  entirely  unknown  or  indifferent  to  him,  or  they  are 
among  his  most  loved  and  cherished  objects  ;  and  it  is  remark- 
able how  often  they  are  children,  and  especially  so,  his  own  off- 
spring. 

IV.  While  the  greater  number  deplore  the  terrible  propensity 
by  which  they  are  controlled,  and  beg  to  be  subjected  to  restraint, 
a  few  diligently  conceal  it,  or,  if  they  avow  it,  declare  their  mur- 
derous designs,  and  form  divers  schemes  for  putting  them  in  execu- 
tion, testifying  no  sentiment  of  remorse  or  grief. 

V.  The  most  of  them,  having  gratified  their  propensity  to  kill, 
voluntarily  confess  the  act,  and  quietly  give  themselves  up  to  the 
proper  authorities  ;  a  very  few  only — and  these,  to  an  intelligent 
observer,  show  the  strongest  indications  of  insanity — fly,  and  per- 
sist in  denying  the  act. 

VI.  While  the  criminal  act  itself  is,  in  some  instances,  the  only 
indication  of  insanity — the  individual  appearing  rational,  as  far  as 
can  be  learned,  both  before  and  after  the  act — in  others  it  is 
followed  or  preceded,  or  both,  by  strange  behavior,  if  not  open 
and  decided  insanity. 

VII.  Some  plead  insanity  in  defence  of  their  conduct,  or  an 
entire  ignorance  of  what  they  did ;  others  deny  that  they  labor 
under  any  such  condition,  and,  at  most,  acknowledge  only  a  pertur- 
bation of  mind. 

479 


§  582.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

The  following  are  the  indicia  given  by  Taylor : — 

1.  The  acts  of  homicide  have  generally  been  preceded  by  other 
striking  jf)ec^^?mr^Y^'es  of  conduct  in  the  individual,  often  by  a  total 
change  of  character. 

2.  They  have  in  many  instances,  previously  or  subsequently, 
g  ,  attempted  suicide — they  have  expressed  a  wish  to  die  or 
instances       to  be  executed  as  criminals. 

of  homi-  t     r  a-i  K  Ml  •  f      1 

cidaima-  §  581.    As  an  illustration  of  the  erroneous  induction 

on  which  the  doctrine  of  monomania  rests,  may  be  men- 
tioned the  case  of  a  man  tried  in  1869  for  a  murder  in  Alton, 
England.  He  had  enticed  a  little  girl  into  a  garden,  where  he  at 
once  killed  her,  cut  her  in  pieces,  scattering  the  fragments  in  dif- 
ferent places ;  washed  his  hands  publicly  by  the  roadside ;  went 
quietly  home,  when  he  wrote  in  his  journal,  "  killed  a  little  girl;  it 
was  fine  and  hot,"  and  then  confessed  to  the  officers  who  appre- 
hended him  what  he  had  done,  giving  no  reason,  and  speaking  of 
it  as  an  indifferent  event.^  Now  the  very  essence  of  homicidal 
mania,  as  insanity  exclusively  moral,  is  that  the  reason  is  supposed 
to  be  intact.  But  how  was  it  in  this  case  ?  (1)  The  defendant 
exposed  himself  unnecessarily,  without  motive,  without  precaution 
as  to  concealment,  to  the  most  terrible  punishment  the  law  can  in- 
flict. (2)  He  viewed  an  act  which  to  the  eye  of  reason  would  be 
the  most  tragic  and  revolting  Avith  as  much  indifference  as  he  would 
pulling  up  a  plant  or  killing  a  fly.  (3)  It  was  in  evidence  that  his 
father  had  labored  under  acute  mania ;  that  one  of  his  near  rela- 
tives was  at  the  time  confined  as  a  lunatic,  and  that  he  himself  had 
been  so  peculiar  and  liable  to  depression  that  he  had  been  from 
time  to  time  watched  to  keep  him  from  suicide.  Under  such  cir- 
cumstances it  is  scarcely  accurate  for  Dr.  Maudsley  to  say  that 
"  he  was  not  insane  in  the  legal  or  the  ordinary  sense  of  the  term," 
and  to  treat  the  case  as  supporting  the  theory  of  homicidal  mania, 
as  distinguished  from  legal  insanity.  On  the  facts  above  stated,  if 
there  were  no  countervailing  evidence,  neither  judge  nor  psycho- 
logist would  pronounce  the  patient  to  have  been  possessed  at  the 
time  of  the  act  of  right  reason. 

§  682.  To  the  same  efliect  is  a  case  which  occurred  in  New  Eng- 
land, in  1868,  which  has  also  been  claimed  to  prove  distinctive 

'  See  Maudsley's  Body  and  Mind,  p.  71. 

480 


HOMICIDAL    MONOMANIA.  [§  583. 

moral  insanity.  A  gentleman  of  the  greatest  amiability  and  the 
tenderest  family  affections,  after  having  labored  for  several  days 
under  depression,  arose  from  his  bed  about  midnight,  killed  one  of 
his  children  with  a  razor,  and  was  attacking  another,  Avhen  he  was 
arrested  by  his  wife.  He  fled  trembling  and  almost  naked  into  the 
road ;  and  was  discovered  early  the  next  morning,  conscious  of  the 
terrible  natm'e  of  his  act ;  conscious  that  it  was  a  crime  against  the 
law  as  well  as  a  terrible  grief  to  himself;  but  believing  it  was 
necessary  to  rescue  from  great  undefined  calamity  the  very  children 
whom  he  had  attacked.  Certainly  there  was  here  a  turmoil  and 
frenzy  of  the  reasoning  powers  more  signal  as  well  as  more  awful 
than  that  of  the  fatuous  idiocy  which  is  incapable  of  determining 
right  from  wrong.  Nor  was  the  moral  sense  destroyed  or  percepti- 
bly deranged,  for  there  was  the  acutest  anguish  exhibited,  and  the 
kneenest  perception  of  the  enormity  of  the  act.  But  there  was 
such  a  wreck  of  the  reasoning  powers  that  the  act,  fearful  and  hate- 
ful as  it  was,  appeared  to  the  perpetrator  necessary.  It  was  a  case 
of  acute  hypochondria  involving  derangement  of  the  mind} 

§  583.  Dr.  Maudsley,  while   maintaining  the  distinctiveness  of 

this  phase  of  insanity,  attributes  it,  not  to  insulated  moral    _ 

^  -^ '  ' .  Dr.  Mauds- 

derangement,  but  to  neuropathic  disease.     "  Those  who   ley  main- 
have  practical  experience  of  insanity,^  know  well  that   this  mania 
there  is  a  most  distressing  form  of  the  disease,  in  which   tj^g^^*^'^'^" 
a  desperate  impulse  to  commit  suicide  or  homicide  over- 
powers and  takes  prisoner  the  reason.     The  terrible  impulse  is  de- 
plored sometimes  by  him  who  suffers  from  it  as  deeply  as  by  any 
one  who  witnesses  it ;  it  causes  him  unspeakable  distress  ;  he  is  fully 
conscious  of  its  nature,  and  struggles  in  vain  against  it ;  his  reason 
is  no  further  affected  then  in  having  lost  power  to  control,  or  having 
become  the  slave  of  the  morbid  and  convulsive  impulse.    It  may  be 
that  this  form  of  derangement  does  sometimes  occur  when  there  is 
no  hereditary  predisposition  to  insanity,  but  there  is  no  doubt  that 
in  the  great  majority/  of  cases  there  is  such  a  neurojjathic  state. 
The  impulse  is  truly  a  convulsive  idea,  spr'inging  from  a  morbid 

1  See  supra,  §§  155,  529  ;  infra,  §  636  ;  the  Gulstonian  Lectures  for  1870,  by 
and  cases  in  Appendix  to  3d  ed.  of  this  Henry  Maudsley,  M.D.  London,  1870, 
work,  §§  838,  839,  842.  p.  73.    To  the  same  effect  is  Maudsley's 

2  Body  and  Mind,  an  Inquiry  into  "Responsibility  in  Mental  Disease," 
their  Mutual   Connection,   etc.,   being  1874. 

VOL.  I.— 31  481 


§  584.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

condition  of  nerve  element,  and  it  is  strictly  comparable  with  an 
epileptic  convulsion.  How  grossly  unjust,  then,  the  judicial  crite- 
rion of  responsibility  which  dooms  an  insane  person  of  this  class  to 
death  if  he  knew  what  he  was  doing  Avhen  he  committed  a  murder ! 
It  were  as  reasonable  to  hang  a  man  for  not  stopping  by  an  act  of 
will  a  convulsion  of  Avhich  he  was  conscious.  An  interesting  cir- 
cumstance in  connection  with  this  morbid  impulse  is  that  its  convul- 
sive activity  is  sometimes  preceded  hy  a  feeling  very  like  the  aura 
epileptica,  a  strange  'morbid  sensation,  beginning  in  some  part  of 
the  body,  and  rising  gradually  to  the  brain.  The  patient  may  ac- 
cordingly give  warning  of  the  impending  attack  in  some  instances, 
and  in  one  case  was  calmed  by  having  his  thumbs  loosely  tied  to- 
gether by  a  ribbon  when  the  forewarning  occurred.  Dr.  Skae 
records  an  instructive  example  in  one  of  his  annual  reports.  The 
feeling  began  at  the  toes,  rose  gradually  to  the  chest,  producing  a 
sense  of  faintness  and  constriction,  and  then  to  the  head,  producing 
a  momentary  loss  of  consciousness.  This  aura  was  accomiMnied 
by  an  involuntary  jerking,  first  of  the  legs  and  then  of  the  arms. 
It  was  when  these  attacks  came  on  that  the  patient  felt  impelled  to 
commit  some  act  of  violence  against  himself  or  others.  On  one 
occasion  he  attempted  to  commit  suicide  by  throwing  himself  into 
the  water ;  more  often  the  impulse  was  to  attack  others.  He  de- 
plored his  condition,  of  which  he  spoke  with  great  intelligence,  giv- 
ing all  the  details  of  his  past  history  and  feelings.  In  other  cases, 
a  feeling  of  vertigo,  a  trembling,  and  a  vague  dread  of  something 
fearful  about  to  happen,  resembling  the  vertigo  and  momentary 
vague  despair  of  one  variety  of  the  epileptic  aura,  precede  the 
attack." 

§  58-t.  When  the  cases  sketched  by  Dr.  Maudsley,  however,  are 
examined,  it  will  be  seen  that  they  present  certain  positive  features 
which  distinguish  them  from  insanity  which  is  described  as  exclu- 
sively "  moral,"  and  which  the  courts  have  declined  to  recognize. 
Dr.  Maudsley  tells  us  (1)  that  the  patient,  in  such  cases,  is  in  a 
"  neuropathic  state,"  Avhich  is  a  state  of  positive  physical  disease ; 
(2)  that  this  state  "  is  strictly  comparable  with  an  epileptic  convul- 
sion ;"  (3)  that  it  is  sometimes  preceded  by  a  feeling  "  very  like 
the  aura  epileptica  ;  and  (4)  that  it  is  often  the  result  of  heredi- 
tary insanity."  Now  the  act,  alleged  to  be  criminal,  may  be 
viewed  as  without  a  cause,  or  as  being  caused  by  an  intelligent 
482       . 


HOMICIDAL    MONOMANIA.  [§  585. 

volition,  or  as  being  caused  by  material  and  physical  compulsion,^ 
If  the  latter  be  proved  to  exist,  whether  the  compulsion  was  internal 
or  external,  the  actor  is  not  morally  responsible.  Disease,  espe- 
cially convulsive  disease,  may  be  such  compulsion ;  but,  if  so,  it 
must  be  affirmatively  proved.  The  tests  propounded  by  Dr.  Mauds- 
ley  go  far  to  constitute  such  proof.  Of  course,  when  a  man  is  put 
on  trial  for  a  criminal  act,  the  presumption  is  that  he  committed 
such  act  voluntarily.  But  this  presumption  may  be  overcome,  and 
physical  coercion  shown,  by  proof  such  as  that  which  Dr.  Maudsley 
suggests,  coupled,  when  it  can  be,  by  evidence  of  the  unnaturalness 
and  motivelessness  of  the  act. 

§  585.  In  Sir  Henry  Holland's  "Recollections,"^  the  following 
anecdote  is    given:     "In  1825,  as  I    think,  when   he 
(Canning)  was  foreign  secretary  and  living    at    Glou-   fi^^^  .    „ 
cester  Lodge,  I  was  one  morning  called  in  haste  to  see  a   not  in-e- 

-r.  o  1      1      T  T  11  sistible. 

patient  at  Urompton.  Scarcely  had  1  entered  the  room 
of  this  gentleman  (for  such  he  was,  and  had  filled  a  diplomatic 
office  of  some  consideration)  when  he  eagerly  besought  me  to  pro- 
tect him  against  himself.  He  told  me  that  a  propensity  to  kill  Mr. 
Canning  had  come  upon  him  suddenly,  and  so  strongly,  that  he  had 
taken  these  rooms  at  Brompton  to  be  in  the  way  of  satisfying  the 
impulse.  But  against  this  insane  will  {induced  hy  some  supposed 
official  injustice')  a  sounder  feeling  was  struggling  within  him,  and 
for  the  moment  gained  mastery  enough  to  lead  him  to  seek  for 
instant  restraint.  I,  of  course,  lost  no  time  in  providing  it ; 
warning  Mr.  Canning  meanwhile  to  return  to  Gloucester  Lodge  by 
a  different  road.  These  strange  cases  of  what  may  be  called 
duplicity  of  the  will  are  not  rare  in  the  long  catalogue  of  mental 
infirmities.  In  lighter  and  less  critical  form  such  inco7igruities 
enter  into  the  most  familiar  moods  of  character  and  acts  of  life; 
hut  even  here  they  need  to  he  self-recognized  and  resisted^  to  prevent 
their  gaining  mastery  over  the  mind.  The  consistent  and  firm 
command  over  the  will  ranks  amongst  the  higher  attainments  of 
man.'''' 

In  this  case  we  have  two  distinct  factors  which  are  among  the 

'  See  supra,  §§  146-162.  Royal    Institution   of    Great    Britain, 

2  Recollections  of  Past  Life.  By  Sir  Physician  in  Ordinary  to  the  Queen. 

Henry  Holland,   Bart.,  M.D.,  F.R.S.,  London:  Longmans  and  Co.,  1872. 

D.C.L.,    etc.    etc.,    President  of    the 

483 


§  587.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

most  constant  incidents  of  criminal  responsibility  :  (1)  the  motive 
of  malice,  i.  e.,  revenge  for  "  some  supposed  official  injustice  ;" 
(2)  the  capacity  of  mastering  this  feeling,  so  as  to  prevent  it  from 
taking  eifect  in  an  overt  act.  Of  course,  if  in  such  a  case  the  mind 
becomes  insane  and  reason  is  dethroned,  and  if  when  in  such  a  state 
the  homicidal  impulse  becomes  irresistible,  then,  according  to  the 
rules  laid  down  in  prior  sections,^  a  legal  defence  is  made  out.  But 
all  this  is  in  subordination  to  the  principle  stated  by  Sir  H.Holland, 
that  these  "  propensities"  must  be  "  self-recognized  and  resisted  to 
prevent  their  gaining  mastery  over  the  mind."  To  declare  that 
they  constitute  irresponsibility,  and  that  they  are  in  the  eye  of  the 
law  irresistible,  is  for  the  law  to  abdicate  one  of  its  highest  offices, 
that  of  educating  men  to  resist  such  passions  before  they  reach  such 
a  height  as  to  be  really  irresistible.^ 

§  586.  To  recur  to  the  classification  foreshadowed  by  Sir  W. 
M  nia  if  Hamilton,  and  expressed  by  Mr.  Bain,^  the  mind  may  be 
existing  at    yiewed  as  combining  three  distinct  but  mutually  depen- 

all,  isgene-  „     ,.  .,,  ,.  . 

raijDot  dent  factors — feeling,  will  or  volition,  and  thought  or 
specia  .  intellect.  Disease  either  of  feeling  or  thought  is  a  dis- 
ease of  the  mind  as  an  entirety.  Thus  if  feeling  be  in  such  a 
diseased  state  as  to  generate  delusions  or  hallucinations,  the  con- 
clusions which  thought  draws  from  such  data  are  insane.  So  if 
thought  is  so  diseased  that  the  patient,  from  want  of  memory  or 
want  of  power  of  comparison,  is  incapable  of  determining  the  actual 
relation  to  himself  of  the  instrument  by  which  his  feeling  is  excited, 
then  the  consequent  volition  is  insane.  These  points  may  be  illus- 
trated as  follows : — 

§  587.    Anger,*  as  Aristotle   points  out,  is  an  impulse,  arising 

•  Supra,  §§  146-162.  fork  violently  out  of  the  window  so  as 

2  See  supra,  §§  115, 188,  403.    "  Pure  to  lose  tlie  opportunity  of  the  crime  to 

uncontrollable  impulse  is  also  a  source  which  he  had  a  strong  impulse — to  kill 

of  crime  among  the  insane,    especially  the  physician  just  entering  his  room.' 

of  suicide,  homicide,  theft,  and  arson.  This  feeling  may  be    so  strong,   even 

In    certain   forms    of    mental    disease,  toward  a  tenderly  loved  child,  that  the 

the  sudden  impulse  to  kill  one's  self  or  mother,  if  otherwise  rational  enough, 

another,  without  any  motive  or  delibe-  begs  to  be  kept  out  of  its  sight." — Dr. 

ration   or   delusion,  is  at  times    quite  Folsom,    in  North  Am.   Rev.  for  Jan. 

beyond  control;    but  it  is  often  con-  1882,  p.  39. 

trolled  even  in  very  insane  persons,  as  ^  See  supra,  §  307  a. 

in  the  case  of  a  patient  in  an  asylum  *  See  supra,  §  418. 
with  mania,  who  threw  his  knife  and 

484 


HOMICIDAL   MONOMANIA.  [§  688. 

from  pain  to  ourselves,  to  put  somebody  else  to  pain.  It  is  uni- 
versal in  the  human  breast ;  to  invest  it  with  irresponsibility  would 
be  to  confer  irresponsibility  on  all  crime.  As  analyzed  by  Mr. 
Bain,^  it  contains  these  ingredients  :  (1)  In  a  state  of  frenzied  ex- 
citement, some  effect  is  sought  to  give  vent  to  the  activity  ;  (2)  The 
sight  of  bodily  affliction  and  suff^ering  seems  to  be  a  mode  of  sen- 
suous and  sensual  pleasure  ;  (3)  The  pleasure  of  j^ower  is  pan- 
dered to  ;  (4)  There  is  a  satisfaction  in  preventing  further  pain  to 
ourselves  by  inducing  fear  of  us,  or  of  consequences,  in  any  one 
manifesting  harmful  purposes.  Of  these  (1)  and  (2)  may  be  re- 
garded as  the  instinctive  working  of  anger ;  the  latter  as  the  result 
of  feeling  mingled  with  thought. 

Assuming,  then,  the  universality  of  anger  as  a  human  emotion, 
its  action,  in  insanity,  is  as  follows :  A  blow  is  received,  and  the 
sufferer  tries  to  hurt  the  thing  producing  the  hurt.  An  infant,  for 
instance,  strikes  in  anger  the  floor  on  which  he  falls.  The  imbecile 
dashes  his  medicine  to  the  ground.  The  maniac  strikes  about  him 
in  blind  frenzy.  Here  there  is  no  criminal  responsibility,  in  the 
common  sense,  for  the  outburst  of  anger,  though  it  is  proper  that 
one  whose  feelings  are  under  such  slight  restraint  should  be  kept 
under  tutelage. 

§  588.    On  the  other  hand,  illusions   or  hallucinations  may  exist, 
which,  to  a  patient  capable  of  reasoning  correctly,  may 
make  the  indulgence  in  anger  seem  just.     Such  a  pa-   where  rea- 
tient,  for  instance,  may  believe  himself  in  danger  of  his 
own  life,  or  may  conceive  that  he  is  a  soldier  in  the  heat  of  battle, 
or  may  think  that  the  person  whom  he  strikes  is  a  tree  or  an  image. 
In  this  case  also  there  is  no  criminal  responsibility,  though  abund- 
ant ground  for  disciplinary  confinement. 

But  anger  can  never  be  viewed  as  insanity  in  such  a  way 
as  to  constitute  it  a  defence,  unless  the  intellect  be  proved  to 
be  disturbed  in  the  modes  above  specified.  Or,  to  state  the 
proposition  in  other  words,  anger — or  destructive  impulse  of 
any  phase — cannot,  psychologically  or  ethically,  be  an  excuse 
for  crime,  as  long  as  reason  exists,  by  which  it  can  be  con- 
trolled.^ 


'  Mental  and  Moral  Science,  London,         2  gee  su2}ra,  §§  146-162,  188,  403. 
1868,  p.  262. 

485 


§  590.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§589.  Viewing  the  question  of  "homicidal  insanity,"  there- 
fore, on  its  psychological  side,  we  come  to  the  conclusion  that 
unless  the  mind  be  insane,  there  can  be  no  separate  insanity  of 
the  moral  system  having  this  distinct  type.  Viewing  the  question 
ethically,  we  must  conclude  that  no  such  alleged  impulse  should  be 
an  excuse  for  crime  while  there  is  reason  in  the  offender  adapted  to 
the  control  of  the  impulse.  This  brings  psychological  and  ethical 
science  in  this  respect  in  accord  with  juridical.^  At  the  same  time 
it  must  never  be  forgotten  that  there  are  forms  of  insanity — e.  g., 
melancholia — of  which  the  homicidal  propensity,  especially  in  the 
killing  of  children  and  objects  of  particular  love,  is  a  natural  out- 
groAvth.  How  far  such  substratum  of  insanity  may  be  occult,  and 
how  far  it  may  burst  out  exceptionally  as  mania  transitoria,  will 
be  considered  under  other  heads .^ 

2.    '■'' Kleptomania'''^  {inoi'hid  propensity  to  steal). 

[^For  important  medico-juridical  opinions  on  cases  of  alleged 
^'^ Kleptomania.,^'  see  Appendices,  §§  843,  844,  to  third  edition 
of  this  ivorJc.y 

§  690.  A  propensity  to  steal  occurs  not  unfrequently  as  a  symp- 
Anaiysisby  ^^™  ^^  mania,  and  the  mental  confusion  incidental  to  it, 
Eiiinger.  and  in  depression  and  delirium.  In  such  cases  the  dis- 
ease is  readily  detected.  But  wliere  it  occui's  in  cases  of  concealed 
insanity,  its  discovery  is  not  easy.  From  Eiiinger  we  adapt  the 
following  : — 

1.  In  the  earlier  developments  of  mania  this  is  an  important 
symptom ;  it  will,  however,  be  found  accompanied,  more  or  less, 
by  other  symptoms  of  incipient  derangement,  such  as  a  general 
alteration  in  the  accustomed  mode  of  feeling,  thinking,  occupation, 
and  life  of  the  individual,  a  disposition  to  scold,  dispute,  and 
quarrel,  to  drink,  and  to  wander  about  busily  doing  nothing, 
and  the  bodily  signs  of  excitement  (restlessness,  want  of  sleep, 
rapid  pulse,  etc.). 

•  See  supra,    §§   146,   162,   163-189,  des  Maladies  Meutales,  M.  Morel,  tome 

403.  i.  p.  319,  Paris,  1854. 

2  See  infra,  §§  VOe-YlO.  *  See  also  a   case  rep.  Am.   Journ. 

3  See   Med.  Leg.,  M.  Orfila,  tome  1.  Ins.,  No.  254. 
p.  364,  Paris,  1848  ;   Etudes  Cliuiques 

486 


KLEPTOMANIA.  [§  591. 

2.  The  abnormal  tendency  continues  after  the  disease,  to  all 
external  appearance,  has  ceased.  This  continuance,  however, 
shows  that  mental  disease,  though  latent,  still  exists.  (This 
calls  for  a  continued  course  of  observation  by  the  examining  phy- 
sician.) 

3.  There  are  distinct  but  occult  hallucinations  at  work.  These 
are  to  be  assumed  the  more  readily,  the  more  bizarre  and  exclu- 
sive is  the  desire  to  steal,  and  the  more  the  objects  to  which  it  is 
confined  are  out  of  proportion  to  the  property  of  the  thief ;  and 
particular  attention  should  be  paid  to  the  existence,  present  or  past, 
of  other  symptoms  of  insanity. 

4.  Automatic  impulses,  such  as  the  cravings  of  pregnant  women, 
may  actuate  the  perpetrators  ;  and  the  degree  of  mental  lesion 
may  be  inferred  from  the  extent  to  which  the  moral  nature  revolts 
at  and  abhors  the  deed.  The  same  inference  is  deducible  from  the 
slightness  and  grotesqueness  of  the  peculations,  and  the  degree  in 
which  other  morbid  symptoms  are  apparent  in  the  body  and  the 
mind  when  the  deed  is  committed. 

§  591.  Dr.  Rush,  whose  speculative  mind  seized  readily  on  the 
then  novel  distinctions  which  the  French  alienists  of  his  niustra- 
day  were  propounding,  was  the  first  American  authority  *'°°®- 
to  claim  insularity  for  this  propensity.  "  There  are  persons,"  he 
said,  "  who  are  moral  to  the  highest  degree  as  to  certain  duties, 
but  Avho,  nevertheless,  live  under  the  influence  of  some  one  vice. 
In  one  instance,  a  woman  was  exemplary  in  her  obedience  to  every 
command  of  the  moral  law,  except  one — she  could  not  refrain  from 
stealing.  What  made  this  vice  more  remarkable  was  that  she  was 
in  easy  circumstances,  and  not  addicted  to  extravagance  in  any- 
thing. Such  was  the  propensity  to  this  vice,  that  when  she  could 
lay  her  hands  on  nothing  more  valuable,  she  would  often  at  the 
table  of  a  friend  fill  her  pockets  secretly  with  bread.  She  both 
confessed  and  lamented  her  crime."  "  Cases  like  this,"  so  argues 
Dr.  Ray,  "  are  so  common,  that  they  must  have  come  within  the 
personal  knowledge  of  every  reader  who  has  seen  much  of  the 
world,  so  that  it  will  be  unnecessary  to  mention  them  more  par- 
ticularly. It  would  be  difficult  to  prove  directly  that  this  propen- 
sity, continuing  as  it  does  throughout  a  whole  life  and  in  a  state  of 
apparently  perfect  health,  is,  notwithstanding,  a  consequence  of 
diseased  or  abnormal  action  in  the  brain,  but  the  presumptive  evi- 

487 


§  593.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

dence  in  favor  of  this  explanation  is  certainly  strong.  First,  it  is 
very  often  observed  in  abnormal  conformations  of  the  head,  and 
accompanied  by  an  imbecile  condition  of  the  understanding.  Gall 
and  Spurzheim  saw  in  the  prison  of  Berne  a  boy,  twelve  years  old, 
who  could  never  refrain  from  stealing.  He  is  described  as  '  ill- 
organized  and  rickety.'  At  Hainau  they  were  shown  an  obstinate 
robber  whom  no  corporal  punishment  could  correct.  Pie  appeared 
about  sixteen  years  of  age,  though  he  was  in  fact  twenty-six  ;  his 
head  was  round,  and  about  the  size  of  a  child's  one  year  old.  He 
was  also  deaf  and  dumb,  a  common  accompaniment  of  mental  im- 
becility. An  instructive  case  has  been  lately  recorded,  in  which 
this  propensity  seemed  to  be  the  result  of  a  rickety  and  scrofulous 
constitution.  Secondly,  this  propensity  to  steal  is  not  unfrequently 
observed  in  undoubted  mania.  Pinel  says  it  is  a  matter  of  common 
observation  that  some  maniacs,  who,  in  their  lucid  intervals,  are 
justly  considered  models  of  probity,  cannot  refrain  from  stealing 
and  cheating  during  the  paroxysm.  Gall  mentions  the  case  of  two 
citizens  of  Vienna,  who,  on  becoming  insane,  were  distinguished  in 
the  hospital  for  an  extraordinary  propensity  to  steal,  though  pre- 
viously they  had  lived  irreproachable  lives.  They  wandered  over 
the  house  from  morning  to  night,  picking  up  whatever  they  could 
lay  their  hands  upon — straw,  rags,  clothes,  wood,  etc. — which  they 
carefully  concealed  in  their  room."^ 

§  592.  How  frequently  the  illustrations  just  mentioned  have 
done  service  to  establish  this  mania  will  be  presently 
when  rea-  noticed.^  It  is  sufficient  at  present  to  invoke  for  their 
son  con-  disposal  the  principle  heretofore  abundantly  vindicated, 
that  in  all  cases  where  the  mind  is  sane  it  is  the  duty 
of  the  state,  by  education  and  penal  discipline,  to  establish  sane 
morality.^ 

§  593.  Yet,  when  we  analyze  the  cases  adduced  of  this  alleged 
"mania,"  we  cannot  fail  to  see  how   many  of  them  are 
indicate        attributable  to  ascertained  mental  disease.     This  is  emi- 
^^sanity.       nently  the  case  with  epileptics.     Dr.   Erhardt*  enume- 
rates many  cases  where  these  unhappy  suiferers  have 
been  possessed  with  irrepressible  desires  to  appropriate  to  them- 

•  Ray  on  insanity,    189,  190,   191 ;        »  See  supra,  §§  115-188,  403,  495. 
see  ante,  §  106.  *  Ueber  ZurechungsfahigkeitderEpi- 

2  Infra,  note  2,  p.  489.  leptischen. 

488 


KLEPTOMANIA.  [§  593. 

selves  whatever  they  could  secretly  lay  their  hands  on,  valuable  or 
not.  And  generally  -with  regard  to  the  moral  responsibility  of 
epileptics,  it  is  important  to  observe,  says  the  same  judicious  author, 
that  even  after  attacks  have  been  for  months  suspended,  the  mind 
is  in  a  condition  of  disorganization  which  should  properly  divert 
from  it  the  application  of  those  severe  rules  which  apply  to  minds 
perfectly  sound. ^  The  same  criticism  may  be  applied  to  other 
cases  cited  by  Gall,  of  women  who,  when  pregnant,  were  violently 
impelled  to  steal,  though  perfectly  upright  at  other  times.  Fried- 
reich gives  the  case  of  a  pregnant  woman  who,  otherwise  perfectly 
honest  and  respectable,  suddenly  conceived  a  violent  longing  for 
some  apples  from  a  particular  orchard,  two  or  three  miles  distant. 
Notwithstanding  the  entreaties  of  her  parents  and  husband  not  to 
risk  her  character  and  health,  and  their  promises  to  procure  the 
apples  for  her  in  the  morning,  she  started  off  in  company  with  her 
husband,  at  nine  o'clock  of  a  cold  September  night,  and  was  de- 
tected by  the  owner  in  the  act  of  stealing  the  apples.  She  was 
tried  and  convicted  of  theft,  but  subsequently  a  medical  commission 
was  appointed  by  the  supreme  court  to  examine  and  report  upon 
her  case.  Their  inquiries  resulted  in  the  opinion  that  she  was  not 
morally  free,  and  consequently  not  legally  responsible  while  under 
the  influence  of  those  desires  peculiar  to  pregnancy.^     If,  however, 

'  See  also  Boileau  de  Castelnau  De  them  seem  to  be  garnered  all  the  affec- 

I'epilepsie    dans    ses     rapports     avec  tions  of  those  who  consider  them  as  the 

I'alienation    mentale,     consideres    au  most  perfect  specimens   of    the    class 

point  de  vue  medico-judicaire.      An-  they  are  made  to  represent.     This  is 

nales  d'Hygiene  publ.  et  de  Medecine  the  more  remarkable,  since  within  the 

L6g.,  Avril,  1852,  No.  94.  past  few  years   the   whole    theory   of 

2  Ray  on  Insanity,  pp.  192-3.  Dr.  moral  insanity  has  been  ably  contested 
Chipley,  in  an  interesting  article  in  by  such  writers  as  Heinrich,  Leubu- 
the  American  Journal  of  Insanity  for  scher,  Mayo,  and  others,  and  it  no 
.July,  1866,  remarks  with  much  justice  longer  receives  that  uniform  appro- 
on  the  hard  use  to  which  several  an-  bation  in  the  land  where  it  was  first 
cient  cases  of  "  monomania"  are  put,  recognized  as  was  once  accorded  to  it. 
and  this  peculiarly  applies  to  the  cases  Curiously  enough,  as.itis  losing  ground 
in  the  text,  and  others  cited  from  Gall  and  becoming  effete  in  the  land  of  its 
and  Spurzheim.  "  It  must  strike  one  birth,  it  meets  'with  an  increased  sup- 
as  curious,"  he  says,  "  how  often  these  port  in  our  own  country.'  Is  its  des- 
same  old  cases  are  made  to  do  duty,  tiny  to  be  like  that  of  the  current 
They  pass  down  from  one  author  to  fashions,  which,  as  they  fade  away  in 
another  as  sacred  heirlooms  pass  from  America,  enjoy  a  short  reign,  and  then 
one    generation   to   another;    and   in  give  place  to  other  discoveries?" 

489 


§  595.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

the  full  report  of  this  case  could  be  secured,  we  must  conclude, 
judging  from  subsequent  German  decisions,  that  it  would  exhibit 
some  proof  of  mental  disease. 

§  594.  The  same  remark  applies  more  strongly  to  a  well-known 
case  cited  by  Fodera.^  "  I  had  a  female  servant,"  he  adds,  "  who 
was  a  very  good  Christian,  very  tvise,  and  very  modest,  but  who 
could  not  prevent  herself  from  stealing  in  secret,  from  myself  and 
others,  even  the  most  trifling  things,  though  aware  of  the  turpitude 
of  the  action.  I  sent  her  to  the  hospital  as  mad.  After  a  long 
time,  appearing  to  be  reclaimed,  she  was  restored  to  her  place 
among  the  other  servants  ;  by  little  and  little,  in  spite  of  herself, 
the  instinct  returned ;  and  being  distracted  on  the  one  hand  by  the 
evil  propensity,  and  on  the  other  by  the  horror  which  she  felt  of  it, 
she  fell  into  an  access  of  mania,  and  suddenly  died  in  the  violence 
of  a  paroxysm.''''  The  "  access"  was  no  doubt  the  manifestation  of 
mania  previously  occult. 

§  595.  A  trial,  involving  the  defence  of  kleptomania,  was,  in 
1855,  the  cause  of  much  discussion  by  the  London  press.  Mrs. 
R.,  the  wife  of  a  physician  of  rank  and  affluence,  was  detected  in 
secreting  some  French  cambric  handkerchiefs  in  the  shop  of  a  re- 
spectable haberdasher.  The  jury  were  unable  to  agree,  and  the 
Times,  in  discussing  the  case,  made  the  following  statement:  — 

"  It  is  an  instance  of  that  not  very  uncommon  monomania  which 
leads  persons,  otherwise  estimable  and  well  conducted,  to  pilfer 
articles  of  a  trifling  value,  in  obedience  to  the  impulses  of  a  diseased 
imagination.  The  fact  is  notorious  that  many  persons  of  high  rank 
and  ample  means  have  been  affected  with  this  strange  disorder. 
Every  one  who  is  acquainted  with  London  society  could  at  once 
furnish  a  dozen  names  of  ladies  who  have  been  notorious  for  ab- 
stracting articles  of  trifling  value  from  the  shops  where  they  habit- 
ually dealt.  Their  modus  operandi  was  so  well  known,  that  on  their 
return  from  their  drives  their  relatives  took  care  to  ascertain  the 
nature  of  their  paltry  peculations,  inquired  from  the  coachman  the 
houses  at  which  he  had  been  ordered  to  stop,  and,  as  a  matter  of 
course,  reimbursed  the  tradesmen  to  the  full  value  of  the  pilfei'ed 
goods.     In  other  cases  a  hint  was  given  to  the  various  shopkeepers 

1  For  other  cases,  vide  Miinchmeyer,  xiv.  art.  Femme,  p.  624,  and  art. 
in  Henke's  Zeitsohrift,  vol.  xlix.  p.  Grossesse ;  Prager  Vierteljahrschrift, 
350  ;  Diet,  des  Sciences  Medicales,  tome     v.  30,  Bd.  2,  p.  121. 

490 


KLEPTOMANIA.  [§  596. 

at  whose  houses  these  monomaniacs  made  their  purchases,  and  they 
were  simply  forewarned  to  notice  what  was  taken  away,  and  to 
furnish  the  bill,  which  was  paid  as  soon  as  furnished,  and,  as  a 
matter  of  course,  by  the  pilferer  herself,  without  any  feeling  of 
shame,  or  emotion  of  any  kind."  Of  Lady  Cork  similar  anecdotes 
are  related  by  Mrs.  Kemble.^ 

With  resard  to  the  motiveless  nature  of  some  thefts  and  the 
singularly  incorrigible  character  of  some  thieves,  Casper  makes 
some  pertinent  remarks :  "  The  rare  cases  which  Marc  refers  to,  in 
which  the  thief  throws  away  the  object  stolen,  or  spontaneously 
proposes  to  pay  for  it,  admit  of  physiological  explanation.  We  do 
not  mean  that  very  common  state  of  perversity  and  malignity  which 
may  be  the  cause  of  some  thefts  of  this  kind ;  what  we  mean  is, 
that  so  much  tact,  address,  and  courage  are  often  needful  to  com- 
mit a  theft  Avithout  being  discovered,  that  it  is  so  needful  to  watch 
and  to  seize  the  right  moment,  to  plan  with  care  and  to  execute  with 
promptitude,  that  one  can  comprehend  the  great  pleasure  which  is 
experienced  in  overcoming  such  difficulties,  and  how  much  so  peril- 
ous an  enterprise,  crowned  with  success,  is  flattering  to  the  self- 
approbation  of  the  thief. 

"  I  am  convinced,  also,  that  in  some  individuals  a  real  attraction 
is  felt  in  this  chase  after  the  property  of  another.  I  say  chase,  for 
I  can  compare  it  to  nothing  better  than  the  passionate  desire  to  fol- 
low a  hare  or  a  fox  at  the  hazard  of  life,  or  to  Avatch  for  the  prey 
like  fishermen  in  England,  who  remain  whole  days  on  the  water, 
patiently  watching  the  least  movement  of  their  game.  I  am 
thoroughly  convinced  that  this  emotion  is  of  much  force  in  holding 
thieves  to  their  mode  of  life,  and  it  is  in  this  manner  only  that  Ave 
can  explain  how  it  is  that  some  of  them,  after  a  long  imprisonment, 
immediately  recommence  to  steal,  although  they  well  know  that  a 
second  punishment  more  severe  than  the  first  awaits  them." 

§  596.  The  value  of  the  thing  stolen,  as  has  been  already  noticed, 
and  as  is  Avell  illustrated  by  Dr.  Kieser,  does  not  ahvays 
enter  into  the  motive.    Old  bits  of  iron,  Avood,  or  thread    article 
are  stuck  furtively  into  the  pocket. ^    But  it  must  not  be    stolen  not 

•^    _  -i  necessarily 

forgotten,  that,  Avhile   a  market  value  may  amount  to    an  element. 

•  Atlantic  Monthly,  March,  1877,  p.     Bucknill,  Journal  of  Mental   Science, 
435.      See   also   article   by  Dr.   J.  C.     July,  1862. 

2  Elemente  der  Psychiatrik,  p.  195. 

491 


§  598.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLY. 

zero,  a  conventional  value  may  be  higher.  Thus,  when  Dr.  Buch- 
land  was  Dean  of  Westminster,  he  received  anonymous  letters, 
containing  a  chip  of  black  oak  cut  from  the  coronation  chair,  and  a 
fragment  of  the  tomb  of  Henry  VIII.,  which  the  writers  stated  they 
had  purloined  in  their  youths  and  now  desired  to  return.  Here 
were  cases,  it  might  be  said,  of  "  kleptomania,"  and  the  reason  given 
would  be  that  the  things  were  of  no  value.  But  a  scrutiny  of  the 
case  will  show  that  in  this,  as  in  all  cases  of  the  purloining  of 
"  relics,"  the  reverse  is  the  truth.  The  chips  were  taken  because 
they  were  believed  to  have  value.  They  were  curiosities ;  they 
would  give  a  sort  of  eclat  to  the  collections  of  their  possessors. 
But  it  was  soon  found  that  this  would  not  answer.  To  exhibit  these 
chips  would  be  to  confess  the  larceny.  They  could  not,  therefore, 
be  placed  in  the  collection.  They  were  stolen  because  they  were 
of  some  value.  They  were  returned  when  it  was  found  their  value 
was  lost  by  their  theft.  If  in  such  cases  "kleptomania"  be  estab- 
lished as  conferring  irresponsibility,  there  would  be  few  memorials 
of  past  distinction  that  would  not  be  in  a  short  time  chipped  away.^ 
§  597.  Dr.  Kraift-Ebing,  whose  high  position  as  a  psychological 
phvsician  has  already  been  noticed,  and  who  for  sagacity 

Criticism        ^     "  .  "^  .         '  °        *' 

of  Kraflft-      and  experience  has   no  superior,  thus  (1871)  speaks, 
^^^'  under  the  title  "  Wahnsinn,"  in  Holtzendorif's  Encyclo- 

paedia, a  work,  as  has  been  said,  of  very  high  juridical  authority: 
"  In  the  process  of  maniacal  excitement  there  is  sometimes  a  marked 
propensity  for  stealing.  But  this  impulsive,  vehement  compulsion 
(Drang)  to  stealing  is  never  an  isolated  pathological  symptom. 
^Kleptomania,^  in  this  sense,  like  the  other  '  monomanias,'  is  im- 
possible. As  part-symptoms  of  general  psychical  disease,  we  may 
undoubtedly  class  morbid  impulses  to  kill,  to  steal,  etc.  These  have 
been  erroneously  called  monomanias,  and  the  general  condition  of 
disease  has  been,  by  this  process,  ignored.  The  doctrine  of  mono- 
mania is  to-day  rightly  abando7ied"^ 

§  598.  What,  then,  are  the  tests  by  which  "kleptomania"  is 

determined  ?     Matthey  tells  us  that  it  exists  whenever 

abieness        there  is  a  stealing  without  necessity,  without  being  com- 

prove°in*-       pelled  by  the  cravings  of  misery.     But  is  it  a  requisite 

sanit}'.  Qf  criminal  stealing  that  it  should  be  impelled  by  neces- 

'  See  infra,  §  598.  2  See  supra,  5  570. 

492 


KLEPTOMANIA.  [§  601. 

sity,  and  by  the  cravings  of  misery  ?  Are  thieves  exclusively 
those  who  are  impelled  by  "  le  besoin  pressant  de  la  mis^re  ?" 
Certainly  the  records  of  our  criminal  courts  do  not  show  this. 
Most  of  those  who  are  indicted  for  larceny,  indeed  the  whole  class 
of  shop-lifters,  and  of  pickpockets,  are  persons  of  good  appearance, 
well-dressed,  with  intellects  which  would  afford  them  adequate  sup- 
port in  trade,  and  sometimes  even  luxurious  lives.  Thieves  of  this 
class  steal,  not  for  necessaries,  but  to  supply  luxurious  superfluities. 
The  number  of  those  who  steal  to  appease  hunger,  or  to  buy  cloth- 
ing that  is  simply  decent,  is  small. 

§  599.  Another  mark  of  "  kleptomania,"  according  to  Marc,  is 
the  stealing  of  articles  of  value,  small  in  comparison  with  the  ex- 
tent of  the  offender's  estate.  But  is  it  an  incident  of  criminal 
larceny  that  the  article  stolen  should  be  large  in  comparison  with 
the  ofiender's  estate  ?  Have  we  not  already  seen^  that  collections 
of  coins  and  curiosities  have  to  be  jealously  guarded  to  preserve 
them  from  the  depredations  of  avaricious  collectors  ?  Have  we  not 
had  cases  of  great  depredators,  who,  with  immense  spoils  already 
secured,  have  gone  on  embezzling  ?  Are  there  not  in  the  criminal 
reports  frequent  instances  of  rich  but  persistent  thieves  ? 

§  600.  It  is  said,  again,  by  Marc,  that  this  supposed  propensity 
is  marked  by  indifference  to  the  stolen  article  when  obtained  ;  it  is 
soon  discarded  or  thrown  away.  But  is  not  the  man  who  is  "  alieni 
appetens"  very  often,  to  use  Tacitus's  fine  antithesis,  "  sui  pro- 
fusus  ?"  Is  not  that  which  is  lightly  got  often  lightly  parted 
with  ?  Are  there  not  numerous  cases  in  the  books  in  which 
articles  of  jewelry  are  stolen  for  the  purpose  of  being  given 
away  ? 

§  601.  Then,  again,  we  have  assigned  as  a  test  of  "  kleptoma- 
nia" the  return  by  the  offender  of  the  thing  stolen  to  the  party 
from  whom  it  was  taken.  But  have  we  not  numerous  instances  of 
"conscience  money"  returned  to  government — money  of  which  it 
is  the  distinguishing  mark  that  it  was  unconscientiously  taken  and 
is  conscientiously  returned  ?  And  may  there  not  be  sometimes  a 
passion  for  pilfering  like  a  passion  for  fishing  or  hunting,  which, 
without  being  "  irresistible,"  may  yet  spend  itself  in  the  pursuit, 

'  Supra,  §  596. 

493 


§  604.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

and,  when  the  object  is  obtained,  be  followed  by  sober  reflection 
and  by  amends  ? 

§  602.    Undoubtedly  insane  persons  do  pilfer,  and  pilfer  some- 
times with  much  ingenious  surreptitiousness  ;   and  un- 
nianota"     doubtodly,  as  Sander  illustrates,^  this  is  often  a  symp- 
proof  of       ^Qjjj  Qf  incipient  mental   paralysis.      The   instinct   for 

insanity.  ....  . 

acquisition  is  congenital ;  when  the  mind  fails  and  the 
idea  of  property  becomes  confused,  this  instinct  often  appears  in 
appropriating  and  even  secreting  the  property  of  others.  But  this 
is  a  symptom  of  a  decaying  or  disordered  intellect,  not  a  proof  of 
monomania  coexistent  with  sanity. 

§  603.  In  other  words,  "  kleptomania"  cannot  coexist  with 
sanity,  nor  can  a  sane  person  be  a  "  kleptomaniac."^ 

3.  "jP^/romama"  (^norhid  incendiary  propensity'). 

§  604.    Although  this  abnormal  propensity  has  no  substantive 
existence  as   a   monomania,   it   will    remain,   neverthe- 

Pyromania  1^11  o  •  • 

a  symptom    less,  worthy  of  much  study  as  a  symptom  of  insanity. 

msani  y.  -j-^  investigating  such  cases,  the  following  inquiries 
should  be  made  : — 

a.  In  persons  wlio  Jiave  passed  the  age  of  piuberty^  whether 
there  is  not  depression  or  partial  insanity  as  a  basis  ;  whether  the 
individual  was  not  overcome  and  impelled  to  the  deed  by  a  name- 
less dread  which  he  could  not  dispel,  or  by  some  crazy  notion  be- 
fore concealed. 

h.  In  persons  just  arrived  at  the  age  of  puberty.  Here  the 
state  of  development  in  general,  and  in  particular  that  of  the  mind, 
of  the  whole  body,  and  of  the  sexual  organs,  must  be  accurately 
weighed  and  estimated,  with  special  reference  to  age  and  sex,  edu- 
cation and  mode  of  life,  as  experience  teaches  that  the  irregulari- 
ties of  every  kind  which  here  occur  (such  as  accelerated  and  impeded 
growth,  unusual  prostration  and  fatigue  of  the  limbs,  with  painful 
sensations  not  produced  by  adequate  visible  causes,  swellings  of 
the  glands,  anomalies  in  menstruation,  cramps  and  other  nervous 

'  Vierteljahrschrift  f.  gericht.  Med.         2  gge   supra,    §§   146-162.      To   this 

1863  ;    see  also  cases  in  Appendix   to  effect   may  be    cited   the  testimony  of 

third   edition   of  this   work,    §§    843,  Dr.  Gray  in  the  Guiteau  case,  Wash- 

844.  ington,  Jan.  1882. 

494 


pmoMANiA.  [§  605, 

attacks,  and  particularly  irritation  of  mind),  exert  the  most  impor- 
tant influence  on  the  growth  and  increase  of  certain  desires  and 
inclinations,  and  easily  impair  the  power  of  self-control.  These 
transition  states  acquire  a  particular  significance  when  accompanied 
by  home-sickness,  which,  without  necessarily  attaining  the  height 
of  complete  melancholy,  becomes  a  powerful  element  in  morbid  de- 
rangement. 

c.  Where  the  individual  is  yet  m  infancy.  Here,  in  the  absence 
of  reason,  reflection,  and  religious  and  moral  culture,  a  childish 
curiosity  generally  furnishes  the  motive,  more  rarely  a  grudge, 
anger,  or  revenge  ;  but  physical  and  mental  or  moral  causes  may  also 
be  at  work  independently  or  as  auxiliaries.  Tender  years  are  suffi- 
cient, in  such  cases,  to  exclude  the  idea  of  criminal  responsibility. 

§  605.  "  A  morbid  propensity  to  incendiarism  ov  ])yroma7iia,  as 
it  has  been  termed,  where  the  person,  though  otherwise  Ray's 
rational,"  it  is  stated  by  Dr.  Ray,  "  is  borne  on  by  an  opinion, 
irresistible  power  to  the  commission  of  this  crime,  has  received  the 
attention  of  medical  jurists  in  Europe,  by  most  of  whom  it  has 
been  regarded  as  a  distinct  form  of  insanity,  annulling  responsibi- 
lity for  the  acts  to  which  it  leads.  Numerous  cases  have  been  re- 
lated, and  their  medico-legal  relations  amply  discussed  by  Platner, 
Vogel,  Masius,  Henke,  Gall,  Marc,  Friedreich,  and  others.  In  a 
few  of  these  cases  the  morbid  propensity  is  excited  by  the  ordi- 
nary causes  of  insanity  ;  in  a  larger  class  it  is  excited  by  that  con- 
stitutional disturbance  which  often  accompanies  the  menstrual  pe- 
riods ;  but  in  the  largest  class  of  all,  it  occurs  at  the  age  of  puberty, 
and  seems  to  be  connected  with  retarded  evolution  of  the  sexual 
organs.  The  case  of  Maria  Franc,  quoted  by  Gall  from  a  German 
journal,  who  was  executed  for  house-burning,  may  be  referred  to 
the  first  class.  She  was  a  peasant  of  little  education,  and,  in  con- 
sequence of  an  unhappy  marriage,  had  abandoned  herself  to  habits 
of  intemperate  drinking.  In  this  state  a  fire  occurred  in  which 
she  had  no  share.  From  the  moment  she  witnessed  this  fearful 
sight,  she  felt  a  desire  to  fire  houses,  which,  whenever  she  had 
drunk' a  few  coppers'  worth  of  spirits,  was  converted  into  an  irre- 
sistible impulse.  She  could  give  no  other  reason  nor  show  any 
other  motive  for  firing  so  many  houses  than  this  impulse  which  drove 
her  to  it.  Notwithstanding  the  fear,  the  terror,  and  the  repentance 
she  felt  in  every  instance,  she  went  and  did  it  afresh.      In  other 

495 


§  606.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

respects  her  mind  was  sound.  Within  five  years  she  fired  twelve 
houses,  and  was  arrested  on  the  thirteenth  attempt."  But  as  to 
this  statement,  two  qualifications  must  now  be  kept  in  mind.  First, 
whatever  may  have  been  the  temporary  reception  of  this  doctrine 
by  alienists  thirty  years  ago,  it  is  now,  as  is  shoAvn  by  Dr.  Liman 
in  his  (1871)  edition  of  Casper,  almost  entirely  without  high 
psychologico-medical  support.  Second,  a  close  examination  of  the 
case  of  Maria  Franc  exhibits,  as  subsequent  observers  agree, 
mental  disturbance,  which,  when  she  was  inflamed  by  the  "few 
coppers'  worth  of  spirits"  above  noticed,  readily  took  the  incen- 
diary type.^ 

§  606.  "  This  plea,"  we  are  told  by  Taylor,  "has  been  already 

T..  admitted  in  English  law,^  but  chiefly" — it  should  have 

Disap-  _  =>     _  '      _ 

proved  in      been  said  onli/ — "  in  those  instances  in  which  there  was 

foro  judicio  ,    •         n       ,       i      i  ,•  T 

strong  reason  to  suspect  intellectual  aberration,  in  one 
modern  case,^  the  prisoner  was  convicted  on  the  principle  that, 
although  of  weak  intellect,  she  knew  right  from  wrong."*  Among 
several  important  trials  in  which  this  plea  has  been  urged  in  defence, 
the  one  most  interesting  to  the  medical  jurist  is  that  of  James  Cribson, 
tried  before  the  high  court  of  justiciary,  Edinburgh,^  of  which  a  very 
full  report  will  be  found  in  Cormack's  Edinburgh  Journal,  February, 
1845,  p.  141.  The  prisoner  was  charged  with  setting  fire  to  certain 
premises,  and  the  defence  chiefly  rested  upon  the  allegation  that  he 
was  in  a  state  of  mind  which  rendered  him  irresponsible  for  the  act. 
The  medical  evidence  was  generally  in  favor  of  the  insanity.  The 
lord  justice  clerk  (Hope),  in  a  very  elaborate  charge  to  the  jury, 
laid  down  for  their  guidance  most  of  the  legal  propositions  which 
have  been  already  discussed  under  homicidal  mania.  He  remarked 
that  they  were  "not  to  consider  insanity  according  to  the  definitions 
of  medical  men,  especially  such  fantastic  and  showy  definitions  as  are 
found  in  Ray,  whose  work  was  quoted  by  the  counsel  for  the  panel, 
and  in  many  other  medical  works  on  the  subject.  He  adopted  Mr. 
Alison's  view  that  the  consciousness  of  riurht  and  wrono;  must  be 
applied  to  the  particular  act,  and  not  to  crime  in  the  abstract.     The 

'  As  to  this  and  other  of  Gall's  cases,        *  See   Ann.    d'Hyg.   1833,   ii.    357; 
see  supra,  §  593,  note  2,  p.  489.  1834,  ii.  94. 

2  See  cases,  Med.  Gaz.  xii.  p.  80.  ^  Dec.  23,  1844. 

3  Reg.  V.  White,  Wilts.  Summer  Ass. 
1846. 

496       , 


PTROMANIA.  [§  606  a. 

duty  of  deciding  on  this  question  is  with  the  jury  ;  it  is  not  to  be 
delegated  to  medical  men,  and  by  relying  upon  their  own  judgment 
their  decisions  would  be  nearer  the  truth  than  that  of  any  body  of 
medical  Avitnesses."  The  jury  negatived  the  plea,  and  the  prisoner 
was  sentenced  to  transportation  for  fourteen  years. ^ 

An  instance  of  insane  pyromania  may  be  found  in  the  case  of 
Jonathan  Martin^  who  fancied  himself  to  be  deputed  from  God  to 
burn  down  the  Cathedral  of  York,  in  order  to  do  away  with  the 
heresies  which  he  supposed  to  exist  in  the  church.^ 

As  exhibiting  the  checks  proposed  by  those  who  maintain  the 
independent  existence  of  "  pyromania"  as  a  "  monomania,"  we  call 
attention  to  the  following,  laid  down  by  Hencke,  adopted  by  Marc, 
and  recommended  by  Dr.  Ray  : — 

§  606  a.  1.   "  To  prove  the  existence  of  pyromania,  produced  by 
the  sexual  evolution,  the  age  should  correspond  with  that    n^^^-^ 
of  puberty,  which  is  between  twelve  and  fifteen.     Some-    proposed 

.  ,  .  •    1,       •       r         ,  lay  Hencke. 

times,  however,  it  may  occur,  especially  m  temales,  as 

early  as  the  seventh  or  tenth  year,  and,  therefore,  if  the  symptoms 

are  well  marked,  we  have  a  right  to  attribute  them  to  this  cause. 

2.  "  There  should  be  present  symptoms  of  irregular  development; 
of  marked  critical  movements,  by  means  of  which  nature  seeks  to 
complete  the  evolution.  These  general  signs  are,  either  a  rapid 
increase  of  stature,  or  a  less  growth  and  sexual  development  than  is 
common  for  the  age  of  the  individual ;  an  unusual  lassitude  and 
sense  of  weight  and  pain  in  the  limbs,  glandular  swellings,  cutaneous 
eruptions,  etc. 

3.  "  If,  within  a  short  time  of  the  incendiary  act,  there  are  symp- 
toms of  development  in  the  sexual  organs,  such  as  eiforts  of  menstru- 
ation in  girls,  they  deserve  the  greatest  attention.  They  will 
strongly  confirm  the  conclusions  that  might  be  drawn  from  the 
other  symptoms,  that  the  work  of  evolution  disturbed  the  functions 
of  the  brain.  Any  irregularity  whatever  of  the  menstrual  discharge 
is  a  fact  of  the  greatest  importance  in  determining  the  mental  con- 
dition of  incendiary  girls. 

4.  "  Symptoms  of  disturbance  in  the  circulating  system,  such  as 
irregularity  of  the  pulse,  determination  of  blood  to  the  head,  pains 
in  the  head,  vertigo,  stupor,  a  sense  of  oppression  and  distress  in 

'  Taylor's  Med.  Jur.  595.  "  Ibid.  p.  595. 

VOL.  I.— 32  497 


§  607.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

the  chest,  are  indicative  in  young  subjects  of  an  arrest  or  disturb- 
ance of  the  development  of  the  sexual  functions,  and  therefore 
require  attention. 

5.  "  For  the  same  reason  symptoms  of  disturbance  in  the  nervous 
system,  such  as  trembling,  involuntary  motion  of  the  muscles, 
spasms  and  convulsions  of  every  kind,  even  to  epilepsy,  are  no  less 
worthy  of  attention. 

6.  "  Even  in  the  absence  of  all  other  symptoms,  derangement  of 
the  intellectual  or  moral  powers  would  be  strong  proof,  in  these 
<3ases,  of  the  existence  of  pyromania.  Of  the  two,  the  latter  is  far 
the  more  common,  and  is  indicated  by  a  change  in  the  moral  char- 
acter. The  patient  is  sometimes  irascible,  quarrelsome,  at  others, 
sad,  silent,  and  weeping,  without  the  slightest  motive.  He  seems 
to  be  buried  in  a  profound  re  very,  and  suddenly  starts  up  in  a  fright, 
cries  out  in  his  sleep,  etc.  These  symptoms  may  have  disappeared 
and  reappeared,  or  degenerated  at  last  into  intellectual  mania. 

7-  "  The  absence  of  positive  symptoms  of  mental  disorder,  as  well 
as  the  presence  of  those  which  appear  to  show  that  the  reason  is 
sound  (so  it  is  argued),  is  not  incompatible  with  the  loss  of  moral 
liberty."  As  giving  the  old  but  now  exploded  theory  on  this  point, 
the  following  may  be  cited  from  Marc  :  "  Even  when,  previously  to 
the  incendiary  act,  they  have  showii  no  evident  trace  of  mental 
alienation,  and  been  capable  of  attending  to  their  customary  duties  ; 
when,  on  their  examinations,  they  have  answered  pertinently  to 
questions  addressed  to  them ;  when  they  have  avowed  that  they 
were  influenced  by  a  desire  of  revenge  ;  we  cannot  conclude  with 
certainty  that  they  were  in  possession  of  all  their  moral  liberty, 
and  that,  consequently,  they  should  incur  the  full  penalty  of  the 
crime.  These  unfortunates  may  be  governed  by  a  single  fixed 
idea,  not  discovered  till  after  the  execution  of  the  criminal  act. 
Pyromania,  resulting  from  a  pathological  cause,  may  increase  in 
severity,  as  this  cause  itself  is  aggravated,  and  suddenly  be  con- 
verted into  an  irresistible  propensity,  immediately  followed  by  its 
gratification."^ 

§  607.  Griesinger  views  the  question  with  his  usual  philosophical 
breadth:  "  If,  from  the  observations  which  have  been  published  upon 
this  subject,  we  exclude  all  those  cases  where  egotistical  motives 

'  Ray  on  Insanity,  201. 

498 


PYROMANIA.  [§  607. 

have  evidently  guided  the  hand  of  the  incendiary,  there  Opinion  of 
still  remains  a  certain  number  in  which  this  crime  of  arson  that  pyro- 
has  been  committed  by  patients  laboring  under  a  well-  '^^"''^•u, 
marked  melancholia  (particularly  of  nostalgia  passing 
into  mania),  a  state  which  is  often  accompanied  by  important 
derangements  in  the  general  health,  and  frequently  in  the  sexual 
organs.  The  morbid  impulse  develops  itself  precisely  in  the  same 
manner  as  does  the  homicidal  impulse  which  we  have  just  been 
studying.  The  feeling  of  mental  anxiety  and  the  general  disturb- 
ance which  arises  from  the  morbid  condition  of  the  faculties  do  not, 
as  has  been  said  (Masius),  impel  the  individual  to  seek  to  stifle  this 
anxiety  by  the  sight  of  a  great  flame,  but  merely  to  relieve  by  an 
outward  act,  however  negative  and  destructive  in  character,  the 
profound  discord  and  uneasiness  which  rule  within,  and  thereby  to 
obtain  peace  and  tranquillity.  The  particular  direction  which  this 
morbid  impulse  takes,  viz.,  incendiarism,  may  arise  from  the  fact 
that  to  those  persons  in  whom  this  tendency  has  been  most  accu- 
rately observed — namely,  young  people,  particularly  young  maid- 
servants— fire,  with  which  they  in  the  performance  of  their  duties 
have  much  to  do,  is  always  ready  at  hand,  and  presents  itself  as  the 
readiest  means  by  which  they  can  satisfy  the  morbid  craving  which 
torments  them — a  means  which  is  easily  employed,  and  which  re- 
quires neither  great  energy  of  action  nor  violent  determination  to 
make  use  of. 

"  Away^  tJien,  with  the  term  pyromania,  and  let  there  he  a  care- 
ful investigation  in  every  case  into  the  individual  psychological 
peculiarities  which  lie  at  the  bottom  and  give  rise  to  this  impulse. 

"  The  grand  question  inforo,  in  all  such  cases,  must  ever  be  to 
ascertain  whether  there  existed  a  state  of  disease  which  limited,  or 
could  have  limited,  the  liberty  of  the  individual.  Sometimes  the 
symptoms  of  undoubted  mental  disease  can  be  clearly  distinguished 
— a  dominant  feeling  of  anxiety,  hallucinations,  states  of  hysteri- 
cal exaltation  ;  in  other  cases,  the  actual  existence  of  a  nervous 
disease  [epilepsy  or  chorea^  renders  probable  the  assumptio7i  that 
the  accused  has  beeii  subject  to  some  passing  mental  aberration. 
We  should  not  forget  that  usually  very  little  is  wanted  to  interfere 
with  the  liberty  of  action ;  they  are,  for  the  most  part,  young, 
childish  or  half  childish,  often  morally  and  intellectually  weak, 
silly,  and  capricious  individuals.     The  incendiary  act  often  appears 

499 


§  609.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

to  be  utterly  without  any  motive,  the  feeble  ego  having  opposed  no 
resistance  to  the  thought  of  the  deed  which  suddenly  sprang  up. 

"  Of  course  there  are  also  cases  where  the  insane  set  fire  to 
buildings  under  the  impulse  of  motives  very  different.  Jonathan 
Martin,  who  burned  the  Cathedral  of  York,  was  not  a  melancholic, 
but  was  evidently  laboring  under  chronic  partial  dementia,  and  it 
was  in  consequence  of  his  hallucinations  that  he  sought  '  to  purge 
the  house  of  the  Lord  of  the  unworthy  priests'  who  dwelt  in  it. 

"  To  include  this  case  under  the  title  of  ^ pyromania'  (^e.  (/., 
Pinel,  '  Path,  lerebr.,'  p.  328)  is  the  necessary  but  evil  result  of  a 
superficial  classification . " ^ 

§  608.  Dr.  Krafft-Ebing,  in  the  article  on  "  monomanias"  already 
quoted,  says  :  '•  Incendiarism  through  psychical  disease 
Krafft-  is  always  a  symptom  of  such  disease,  though  variously 

*'  induced.       With    persons  suffering  from  nostalgia  and 

melancholia,  it  is  prompted  by  terror  and  sensual  delusions ;  with 
maniacs,  by  insane  conceptions ;  with  idiots,  by  childish  pleasure 
in  fire,  or  diseased  passion  (revenge).  With  youthful  culprits  the 
crime  is  more  frequent,  because  it  requires  no  courage,  and  is  easily 
committed."  This  eminent  and  experienced  observer  holds,  as  has 
been  seen,  that  the  theory  of  "  monomania"  is  in  itself  psychologi- 
cally absurd. 2 

§  609.  The  statistics  that  have  recently  (1871)  been  collected 
St  f  fc  ^^  ^^'^^  topic  go  a  great  way  to  refute  the  theory  that 
on  subject  there  is  a  special  function  which,  when  deranged,  ex- 
the  mania  hiDits  itseli  as  a  morbid  incendiary  propensity,  and  that 
®^^'  there  is  a  particular  age  when  this  derangement  is  apt 
to  occur.  Notwithstanding  the  assertion  that  this  is  a  well-known 
and  constant  disease,  there  are  some  sections  of  the  country  in 
which  all  the  cases  of  arson  that  have  been  tried  for  years  are  those 
in  which  adults  were  the  defendants,  and  this  without  a  single  one  of 
the  "pyromaniac"  symptoms  which  have  been  heretofore  detailed. 
The  table  of  Prussian  criminal  statistics  for  twelve  years  shows  that 
out  of  a  thousand  trials  of  children,  of  the  ages  which  "  pyromonia" 
is  said  to  affect,  but  a  single  case  of  incendiary  crime  is  to  be 
found. 

'  Griesiiiger,  Ment.     Path.,    Syden.         *  See  sitpra,  §  570. 
ed.  §  129. 

500 


PYROMANIA.  [§  610. 

§  610.  The  doctrine,  in  fact,  has  arisen  from  the  difficulty  felt 
by  learned  and  philosophical  experts  in  placing  themselves    j.      . 
in  the  position  of  a  young  servant  charged  with  arson,    has  arisen 

»    1  f  i  1  f>  •  ■  1  •  from  mis- 

A  boy  or  ten  years'  set  lire,  without  apparent  motive,  to  couce.ption 
his  father's  house.  Mental  unsoundness  either  at  the  "^  experts, 
time  of  or  after  the  act  was  not  probable  ;  and  there  were  no 
anomalies  of  physical  development  or  of  physical  disease.  He  was 
aware  of  the  penal  nature  of  the  act.  He  went  about  it  cautiously, 
removing  beforehand  a  child  that  was  placed  under  his  care.  The 
only  assignable  cause  was  childish  caprice.  A  philosophical  expert 
would  with  difficulty  understand  this,  not  being  able  to  put  himself 
in  the  boy's  place.  But  the  court  and  jury  are  forced  to  do  this, 
and  hence  in  this  case  the  judgment  was  that  the  boy  Avas  respon- 
sible, though  in  a  degree  lessened  by  his  youth.  Or  a  girl  of  the 
same  age,  employed  as  a  servant  in  a  farm-house,  gets  up  too  late 
in  the  morning,  and  is  scolded  or  deprived  of  her  breakfast.  This 
is  a  grievance  the  expert  may  think  but  little,  but  to  the  girl,  who 
has  slight  intercourse  with  any  one  out  of  the  farm,  and  to  whom 
the  farm  is  everything,  the  insult  is  as  mortifying  as  would  be  the 
withdrawal  of  a  German  savan's  decoration,  or  the  turning,  by  an 
English  minister,  of  a  petitioner  out  of  doors.  The  girl  goes  out 
and  sets  fire  to  a  haystack,  previously  seeing  that  there  is  little 
danger  to  any  one's  life  by  the  fire.  This  is  a  serious  thing  to  the 
expert,  who  looks  at  fires  in  their  probable  consequences  ;  but  it  is 
a  light  thing  for  the  girl,  who  views  the  burning  haystack  as  she 
would  a  large-sized  country  hearth-fire.  The  expert,  therefore, 
hearing  the  facts,  declares  that  it  is  impossible  that  a  sane  person 
could  commit  arson  on  so  slight  a  provocation,  and  that  the  girl 
must  be  a  "  pyromaniac."  Yet  the  iprovoG&tion,  mutatis  onutandis, 
is  the  same  as  that  which  led  to  the  "  Captain  Rock"  arsons  in 
Ireland.  A  peasant  is  aggrieved.  He  determines  to  avenge  him- 
self by  burning  a  haystack  or  perhaps  a  house.  The  burning  is 
partly  from  revenge,  partly  from  a  wish  to  drive  off  an  incongenial 
neighbor.  The  propensity  is  indulged  in  as  long  as  it  can  be  done 
so  with  impunity.  It  is  suppressed  as  soon  as  men  know  that  it 
will  be  punished. 

'  See    case  given  by  Dr.   Faber,  in  the  Deutsche  Zeitschrift  fur  Staatsarz- 
neikunde  for  1870. 

501 


§  615.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

§  611.  AVe  must  not,  however,  forget  that  insane  persons  some- 
times  have  a  propensity  to  play  with  fire,^  as  they  have 
mania  may  for  other  kinds  of  mischief;  nor  are  cases  unknown  in 
torn  of  Tif-"  which  lunatics  have  been  possessed  with  the  delusion  that 
sanity.  they  were  divinely  commissioned  to  use  fire  to  destroy 

churches,  palaces,  or  even  cities.  Nor  is  it  denied  that  an  idiot, 
watching  a  woman  kindling  a  fire,  may,  in  exercise  of  those  imitative 
faculties  which  in  him  are  so  strangely  divorced  from  reason,  go  out 
and  set  fire  to  a  house.  These  are  cases  of  insanity,  in  which  in- 
sanity is  substantively  and  independently  shown.  All  that  is  here 
asserted  is  that  there  is  no  such  thing  as  "  pyromania,"  as  a  moral 
disease,  coexistent  Avith  mental  sanity .^ 

§  612.  We  must  therefore  conclude  that  to  give  legal  validity  to 
Insanity  pyromania  as  a  defence,  substantive  derangement  should 
must  be        \)q  shown.    This  results  from  the  positions  (1)  that  special 

shown  to  .  .  . 

make  it  a  propensities  are  not  regarded  as  in  the  legal  sense  con- 
stituting insanity,  unless  reason  is  disordered  by  disease  ;^ 
and  (2),  that  aside  from  the  psychological  question,  law  is  ordained 
for  the  very  purpose  of  checking  such  propensities,  and  preserving 
the  community  from  devastation.^  In  these  conclusions  the  highest 
medical  authorities  unite. ^ 

[§§  613,  614  are  omitted  in  this  edition  for  the  purpose  of  con- 
densation.'] 

§  615.  "  At  the  meeting  of  the  Vienna  Society  for  Psychiatre, 
Analysis  of   ^^  January,  1871,  Dr.  Flechner  indorsed  the  opinion  of 

cases  by  Ideler,  who  considers  pyromania  an  abstraction,  of  which 
Dr.  Flecli-  '  ,    ^'  ■,■,,. 

nerdis-  the  judicial  physician  has  no  need,  and  the  views  of 
doctrr^e  of  Casper,  Griesinger,  Jessen,  and  Lien,  who  are  of  opinion 
pyromania.  ^]^^^  arson,  when  committed  by  insane  persons,  may  be 
explained  as  we  explain  any  of  their  other  acts.  Dr.  Flechner  has 
come  to  this  conclusion,  not  only  from  an  unbiassed  reading  of  the 

'  Cases  of  pyromania,  as  an  incident  ^  See  Neue  Sammlung   Gerichtsart- 

of  insanity,  are  given  in  Friedreich's  licher    Grutacliten    aus    den   Verhaud- 

Blatter  for  1870,  p.  33,  and  for  1871,  p.  lungen     der      Prager     Medicinischen 

262.      See   also    19   Journ.   Med.   Sci.  Facultat.     1858. 

456.                                                            ■  See  also  translation  of  Jessen's  work 

2  See  supra,  §§  146-161.  on  Brandstiftung  in  19  Am.  Jour,   of 

3  Supra,  §§  146-161.  Ins.  163,  286,  434. 
*  Supra,  §§  188-403. 

502 


PTROMANIA.  [§  615. 

believers  in  pyromania,  but  also  from  studying  the  cases  that  have 
come  under  his  observation  during  his  thirteen  years'  experience  as 
judicial  physician.  He  insists  that  there  has  never  come  a  case 
under  his  notice  that  seemed  to  justify  the  recognition  of  a  form  of 
insanity  that  could  consistently  be  characterized  as  pyromania. 

"  Of  the  eleven  cases  Dr.  Flechner  had  observed,  seven  were 
males  and  four  females  ;  eight  were  between  fifteen  and  twenty-five, 
and  three  were  more  than  thirty  years  of  age  ;  eight  were  peasants, 
one  was  a  wagon-maker,  one  a  baker,  and  one  a  clerk. 

"  Case  I. — A  young  man  who  was  pursued  by  the  idea  that  he 
would  induce  his  father  to  comply  with  an  absurd  demand  by  burn- 
ing the  house  down. 

"  Case  II. — Hallucinations  were  present  which  led  to  arson  as  a 
means  of  getting  money. 

"  Case  III. — An  act  of  revenge  for  an  imagined  wrong. 

"  Case  IV. — Originally  weak-minded  ;  in  consequence  of  intem- 
perance in  drinking,  insane. 

"  Case  V. — An  act  of  revenge  and  maliciousness  ;'  the  perpe- 
trator weak-minded,  and  not  conscious  that  the  deed  was  punishable. 

"  Case  VI. — An  idiot  was  hired  to  set  fire  to  a  house  I'or  a  few 
kreutzers. 

"  Case  VII. — An  idiot  was  persuaded,  by  a  malicious  woman,  to 
fire  a  house. 

"  Case  VIII. — Arson  as  a  consequence  of  hatred  and  revenge. 
Perpetrator  was  idiotic  and  insane. 

"  Case  IX. — A  sane  but  demoralized  person.  Committed  arson 
five  times  from  malice. 

"  Case  X. — Melancholy,  with  a  feeling  of  anxiety,  tired  of  life, 
and  increase  of  these  conditions  at  the  period  of  menstruation  ;  at- 
tempt at  suicide  and  arson  in  consequence  of  an  impulse  to  do 
something  to  get  rid  of  the  feeling  of  anxiety,  and  to  change  her 
place  of  service. 

"  Case  XL — That  of  an  idiot,  wholly  incapable  of  distinguishing 
between  right  and  wrong. "^ 

The  theory  that  this  impulse  (Brandstiftungstrieb)  is  often  a  con- 
comitant of  the  first  development  of  puberty,  has  led  to  a  series  of 
very  interesting  essays  by  Landsberg.^ 

'  5  Journ.  Psyc.  Med.  605.  mann,   Vezin    (Aerztliches   Oberguta- 

2  Ueber  die   Feuerschausucht,  Her-     chen   iiber   den    Gemiithszustand   der 

503 


§  616.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

§  616,  In  the  case  of  William  Spear,  who  was  tried  for  arson, 

in  1858,  at  Utica,  before  Judge  Allen,  of  the  supreme 

andpsj'cho-   court,  pjromania  was  interposed  as  a  defence.      The 

Tm-omania     weight  of  medical  testimony,  however,  was  against  the 

has  no  ex-     defence,  and  the  iury  Avere  so  charged  by  the  court.    In 
istence.  j      ./  n  ./    ^ 

the  course  of  the  charge,  Judge  Allen  said  :  "  The  ex- 
istence of  the  impulsive  mania  could  only  be  proved  by  the  commis- 
sion of  the  acts  which  it  was  sought  to  excuse,  which  would  be  no 
evidence  at  all ;  and  the  jury  could  never  know,  even  should  it  be 
conceded  that  such  a  '  moral  mania'  might  and  did  exist,  whether, 
in  a  particular  case,  the  acts  were  the  result  of  this  impulse  or  the 
fruits  of  a  wicked  and  depraved  mind.  Courts  and  juries,  in  the 
attempt  to  determine  the  existence  of  moral  mania,  or  irresistible 
impulse,  apart  from  mental  disturbance  and  derangement,  as  evi- 
denced by  the  well-known  symptoms  of  mental  diseases,  as  an  ex- 
cuse for  crime,  would  become  bewildered  and  lost  in  the  labyrinth 
of  scientific  niceties  and  fanciful  theories.  But  when  called  upon 
to  consider  the  subject  of  insanity,  regarded  as  a  derangement  of 
the  intellect,  a  mental  disease,  or  the  manifestations  of  disease 
affecting  the  mind,  whether  the  moral  powers  were  or  were  not  im- 
paired or  perverted,  they  were  not  entirely  without  the  means  of 
arriving  at  a  satisfactory  conclusion,  with  the  aid  of  intelligent 
and  experienced  medical  men,  and  in  the  exercise  of  their  good 
judgment." 

The  judge  then  commented  upon  the  evidence  bearing  upon  the 
question  of  the  insanity  of  the  prisoner  in  detail,  and  suggested 
that  "  the  medical  witnesses,  who  favored  the  idea  of  the  insanity 
and  consequent  irresponsibility  of  the  accused,  appeared  to  think 
that  the  particular  form  of  the  disease  resembled  that  called  pyro- 
mania,  which  was  evinced  by  a  morbid  propensity  to  incendiarism, 
and  which  it  was  claimed  existed  when  a  person  otherwise  rational 
was  impelled  irresistibly  to  the  commission  of  this  crime  ;  that  this 
case  was  open  to  remark  in  this  particular,  that  in  every  instance  in 
which  the  prisoner  had  fired  a  building,  the   act  was  traceable  to 

sich.  wegen   Brandstiftung   in    Unter-  striebes).     See  an  interesting  case  of 

suchung    befindenen)  ;    Hofling    (Die  alleged   pyromania  in  State  v.  Green- 

Lehrevomkrankhaften  Brandstiftung-  wood,    reported    in    5    Am.   Journ.    of 

striebe)  ;  and  Meding    (Ein   Nachtrag  Insan.  237. 
zu   d<^m   Gespenst  des  Brandstiftung- 

504 


EROTOMANIA.  [§  617. 

motives  of  hatred,  and  a  desire  for  revenge  upon  some  individual  for 
an  act,  really  committed  by  that  individual,  oflfensive  to  the  prisoner. 
When  every  act  of  incendiarism  could  be  traced  directly  to  a  motive 
which  Avould  be  influential  with  a  had  man,  and  such  as  not  unfre- 
quently,  if  not  ordinarily,  influenced  men  in  the  commission  of  like 
crimes,  and  when  in  no  instance  the  torch  had  been  applied  from 
mere  love  of  burning,  it  would  not  be  safe  to  excuse  the  party, 
simply  because  the  motive  might,  to  the  jury,  seem  inadequate. 
So  long  as  there  was  no  delusion,  no  loss  of  memory  and  judgment, 
and  the  party  sought  the  very  usual  method  of  wicked  men  to  gratify 
revenge,  and  resorted  to  the  same  means  to  conceal  the  evidences 
of  his  crime,  he  should  not  be  excused  upon  any  theory  of  moral 
insanity,  or  by  reason  of  any  sympathy,  which  would  be  entirely 
misplaced."  The  judge  then  submitted  the  case  to  the  jury,  with 
the  remark  that  it  was  their  peculiar  province  to  determine  whether 
or  not  the  "  prisoner  was,  within  the  rules  thus  imperfectly  laid 
down,  responsible  for  the  act,  and  therefore  guilty  of  arson. "^ 

Not  merely  juridically,  therefore,  but  psychologically,  must  we 
conclude  that  "  pyromania"  has  no  existence  as  a  specific  and  inde- 
pendent form  of  insane  irresponsibility. 

4.  ^^ Erotomania' ^  '•'■  aidoiomania''^  (morbid  sexual  propensity). 

§  617.  There  are  certain  marked  features  which  distinguish  the 
sexual  passion  from  other  natural  instincts: — 

First,  it  diminishes,  while  most  other  appetites,  e.  g.,   passion 
hunger,  intensify,  on  repression.     It  is,  therefore,  capa-   f,!om"other 
ble,  which  they  are  not,  of  restraint  by  the  avoidance  of  natural 

.  *^  instincts. 

stimulatmg  causes. 

Second,  it  is,  with  sane  persons,  accompanied  by  an  instinctive 
sense  of  shame.  The  coarsest  peasant,  who  would  answer  other 
natural  calls  in  the  market  place  without  ablush,  seeks  for  darkness 
and  concealment  in  order  to  satisfy  the  sexual  instinct.  Where 
this  sense  of  shame  exists,  so  that  the  passion  is  subjected  to  it,  we 
can  scarcely  speak  of  the  passion  as  irresistible.  On  the  other 
hand,  where  there  is  no  sense  of  shame,  we  can  scarcely  speak  of 
the  condition  as  one  of  sanity. 

•  See  supra,  §§  146-161. 

505 


§  619.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  618.  No  doubt  there  are  several  forms  of  insanity  in  which 

the  sexual  feeling  is  disproportionately  excited,  and  no 

birsexuai     doubt  undue  sexual  indulgence  is  provocative  of  insanity. 

insanity        But  there  is  no  sound  authority,  either  psychological  or 

imposfeible.  ,  ...  ••,  ,  ,. 

judicial,  to  maintain  the  position  that  there  can  be  irre- 
sponsible insanity  of  the  sexual  feelings  in  a  person  otherwise 
sane.^ 

§  619.  Marc,  to  whose  unphilosophical  enthusiasm  for  classifica- 
tion we  owe  the  existence  of  so  many  "  monomanias," 
those  in  gives  the  name  of  aidoiomania  to  the  excess  of  the  sexual 
doctrine *^^  impulse,  which  is  called  satyriads  when  it  occurs  in  the 
male,  and  yiympliomania,  or  uteromania,  in  the  female. 
This  abnormal  propensity  occurs  as  a  symptom  of  mania,  lunacy, 
and  depression,  as  well  as  of  imbecility  with  maniacal  excitements, 
but  is  also,  he  declares,  found  coupled  with  freedom  of  reason  and 
of  self-control ;  in  which  case,  on  the  reasoning  already  given,  the 
responsibility  of  the  agent  is  not  suspended.  How  far  the  court, 
in  administering  the  punishment,  is  to  allow  for  the  circumstance 
that  the  individual  was  carried  away  in  an  extraordinary  manner 
by  the  physical  impulse  and  the  external  incitement,  is  a  matter  for 
independent  consideration. 

"  Morbid  activity  of  the  sexual  propensity,"  says  Dr.  Ray,  "  is 
unfortunately  of  such  common  occurrence,  that  it  has  been  generally 
noticed  by  medical  writers,  though  its  medico-legal  importance  has 
never  been  so  strongly  felt  as  it  deserves.  This  affection,  in  a  state 
of  the  most  unbridled  excitement,  filling  the  mind  with  a  crowd  of 
voluptuous  images,  and  ever  hurrying  its  victims  to  acts  of  the 
grossest  licentiousness,  though  without  any  lesion  of  the  intellectual 
powers,  is  now  known  and  described  by  the  name  of  aidoiomania. 
We  cannot  convey  a  better  notion  of  the  phenomena  of  this  disorder, 
than  by  quoting  a  few  examples  from  Gall,  by  whom  it  was  first 

'  See   on   this  topic   an    interesting  on  Nymphomania  will  be  found  in  Diet, 

article   by   Dr.   R.    L.   Parsons,     in   5  des  Sciences  M6d.  von  Louyer,  Viller- 

Journ.   Physc.    Med.   456.       See    also  may,  tome  xxxvi.  p.  561.     See  a  case 

Siebold's  Gericht.  Med.  §  210.     An  in-  of  puerperal  mania  of  this  class,  Rep. 

teresting  case  of  Uterine  Furor  will  be  Am.  Journ.  Obst.  for  1880,  154 ;    and 

found  in  El.  v.  Siebold's  Journ.   vol.  see  a   case   of  erotic   delusion,   in   22 

vi.  p.  943.     See  also  a  case  in  Henke's  Journ.  Ment.  Sci.  439. 
Zeitschr.  41,  p.  393.     A  very  able  essay 

506 


EROTOMANIA.  [§  620. 

extensively  observed  and  its  true  nature  discovered.  Its  milder 
forms  and  early  stages,  when  not  beyond  the  control  of  medical  and 
moral  treatment,  are  illustrated  in  the  following  cases  : — 

"  A  robust  and  plethoric  young  man  came  to  reside  in  Vienna. 
Having  no  liaisons,  he  was  unusually  continent,  and  was  soon 
attacked  with  erotic  mania.  Gall,  pursuing  the  treatment  indicated 
by  his  peculiar  views  of  the  origin  of  the  disease,  succeeded  in 
restoring  him  in  a  few  days  to  perfect  health." 

"  A  well-educated,  clever  young  man,  who,  from  his  infancy 
almost,  had  felt  strong  erotic  impulses,  succeeded  in  controlling 
them  to  a  certain  extent  by  means  of  equally  strong  devotional 
feelings.  After  his  situation  permitted  him  to  indulge  without 
constraint  in  the  pleasures  of  love,  he  soon  made  the  fearful  dis- 
covery, that  it  was  often  difficult  for  him  to  Avithdraw  his  mind 
from  the  voluptuous  images  that  haunted  it,  and  fix  it  on  the  im- 
portant and  even  urgent  concerns  of  his  business.  His  whole  being 
was  absorbed  in  sensuality.  He  obtained  relief  by  an  assiduous 
pursuit  of  scientific  objects,  and  by  finding  out  new  occupations." 
But,  if  he  could  obtain  "  relief"  by  study,  it  is  hard  to  see  why  the 
"  mania"  was  viewed  as  "  irresistible  ;"  and  the  case,  therefore,  is 
open  to  the  same  criticism  as  others  from  the  same  source  which 
are  invoked  so  constantly  as  proof-cases  of  "  monomania."  Gall, 
with  all  his  charms  of  style,  was  rather  a  gossippy  and  inconclusive 
anecdotist,  than  an  accurate  and  exhaustive  narrator  of  facts. ^ 

Pinel  gives  the  following :  "A  man  had  creditably  filled  his 
place  in  society  till  his  fiftieth  year.  He  was  then  smitten  with  an 
immoderate  passion  for  venereal  pleasures  ;  he  frequented  places  of 
debauchery,  where  he  gave  himself  up  to  the  utmost  excesses,  and 
then  returned  to  the  society  of  his  friends,  to  paint  the  charms  of 
pure  and  spotless  love.  His  disorder  gradually  increased ;  his 
seclusion  became  necessai*y  ;  and  he  soon  became  a  victim  of  furious 
mania."     This,  however,  is  a  clear  case  of  mental  derangement. 

§  620.  Uterine  causes,  in  women,  are  largely  concerned  in  pro- 
ducing this  disease,  as  a  phase  of  derangement.    Women 
whose  character  has  heretofore  been  of  unsuspected  purity    biiity 
and  of  fastidious  refinement,  indulge  in  loose  conversa-   ^y'heiract  is 
tion,  if  they  do  not  give  way  to  loose  desires.     Some-    the  result 

,      "^  .  .  .  of  physical 

times  this  connects  itself  with  abnormal  appetites  ;  some-    causes. 
'  See  supra,  §  593,  note. 

507 


§  622.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

times  with  unnatural  sexual  abhorrences,  as  well  as  with  sexual 
desires.  These  disorders  may  be  periodical  with  menstruation  ;  or 
thej  may  accompany  the  change  of  life  coincident  with  stoppage  of 
menstruation  ;  or  they  may  flow  from  distinct  uterine  disease.  But 
however  this  may  be,  just  so  far  as  the  act  under  investigation  is 
the  result  of  physical  causes,  so  far  does  the  patient  cease  to  be 
morally  responsible.^ 

§  621.  Under  this  head  may  be  considered  those  cases  of  morbid 
erotic  impulses  which  spend  themselves  on  unnatural 
of  morbid  objects.  The  more  common  of  these  are  those  which 
puises^"^'  the  domestic  history  of  classic  antiquity  makes  familiar 
to  us,  and  which  St.  Paul  adverts  to  in  the  first  chapter 
of  the  Epistle  to  the  Romans.  To  what  extent  these  unnatural 
passions  were  carried  is  illustrated  by  the  paintings  in  at  least  one 
of  the  exhumed  chambers  of  Pompeii.  And  recent  trials  have 
shown,  that  if  the  same  morbid  developments  are  less  numerous  at 
the  present  day,  they  are  at  least  equally  eccentric. 

Some  years  since  the  town  of  Leipsic  was  startled  by  the  fact 
that  a  number  of  young  girls  had  been  assaulted  in  the  streets,  by 
a  man  wrapped  in  a  cloak,  who  struck  a  lancet  in  their  arms,  just 
above  the  elbow,  and  then  vanished.  It  was  a  long  time  before  the 
perpetrator  was  discovered.  When  he  was  at  last  detected  and  put 
on  trial,  it  turned  out  that  he  had  been  impelled  to  these  outrages 
by  a  morbid  sexual  impulse — that  the  incision  of  the  lancet  had 
been  accompanied  with  seminal  emission — and  that  his  whole  exist- 
ence had  become  absorbed  in  the  alternate  excitement  and  depres- 
sion which  preceded  and  succeeded  the  act.^ 

The  same  state  of  facts  was  developed  in  the  trial,  in  London,  of 
a  man  named  Williams,  for  a  similar  species  of  assault.^ 

In  the  same  line  is  the  case  of  Sprague,  already  cited.* 

§  622.  Still  more  startling  were  the  exposures  attending  the  trial 
of  a  sergeant  in  the  French  army,  in  1848.  For  some  time  pre- 
vious, dead  bodies  had  been  exhumed  and  had  been  torn  to  pieces 
at  or  near  the  graves.     On  closer  inspection  the  horrible  fact  was 

'  See   on   this    subject   Dr.    Storer's  *  Wharton's  Cr.  Law,  §  824.     Supra, 

very  valuable  treatise  on  "  Insanity  in  §  573. 

Women,"  Boston,  1871,  and  authori-  ^  Lawyer's  Magazine,  London,  1792, 

ties  cited  supra,  note  1,  p.  506.  vol.  ii.  p.  351. 


*  Supra,  §  573,  note  2,  p.  470. 


508 


EROTOMANIA.  [§  624, 

disclosed  that  sexual  connection  had  been  attempted  with  the  female 
corpses.  The  guilty  party  turned  out  to  have  been  a  young  man 
scarcely  twenty-five,  of  prepossessing  manner  and  appearance,  and 
otherwise  respectable  character.  The  psychological  features  were 
the  same  as  in  the  preceding  cases.  The  act  was  preceded  by 
uncontrollable  excitement,  and  followed  by  great  exhaustion.^ 

§  623.  Fodere  tells  us  of  a  young  monk  who,  in  travelling,  hap- 
pened to  lodge  in  a  house  Avhere  a  young  woman,  who  was  thought 
dead,  had  just  been  laid  out,  and  offered  to  pass  the  night  in  the 
chamber  where  the  coffin  was,  and  to  watch  the  dead.  During  the 
night,  having  uncovered  it  for  the  purpose  of  examination,  and  still 
finding  in  her  countenance  some  traces  of  beauty,  he  determined  to 
satisfy  his  lust,  although  the  object  was  not  in  a  condition  for 
exciting  desire.  Nevertheless  he  satisfied  himself,  and  departed 
early  in  the  morning.  The  dead  person  came  to  life,  however,  the 
next  day,  and  nine  months  afterwards  had  a  child,  to  the  great 
astonishment  of  herself  and  parents.  The  monk  about  this  time 
arrived  in  the  same  place,  and  avowed  himself  the  parent  of  the 
child,  and  married  the  mother  after  throwing  off  the  vows,  which 
he  proved  he  had  been  forced  to  pronounce. 

§  624.  The  following  fact,  taken  from  Bri^rre  de  Boismont, 
shoAvs  a  more  permanent  perversion,  and  reveals  a  settled  patho- 
logic degradation.  A  man  was  arrested  in  a  small  town  for  a  crime 
which  no  one  believed,  but  which,  however,  was  proved  at  the  trial. 
A  girl,  sixteen  years  old,  belonging  to  one  of  the  best  families 
of  the  town,  had  just  died.  A  part  of  the  night  had  passed, 
when  the  noise  of  a  piece  of  furniture  falling  in  the  room  where 
the  dead  person  lay  was  heard.  The  mother,  whose  chamber  was 
next  to  it,  immediately  ran  there,  and,  in  entering,  saAV  a  man 
escaping  in  his  shirt  from  the  bed  of  her  daughter.  Her  fright 
caused  her  to  utter  loud  cries,  which  brought  around  her  all  the 
persons  of  the  household.  They  seized  the  intruder,  who  appeared 
almost  insensible  to  everything  passing  around  him,  and  who  an- 
swered but  confusedly  to  the  questions  addressed  him.  The  first 
idea  was  that  it  was  a  robber ;  but  his  dress  and  certain  signs 
directed  suspicion  in  another  direction,  and  it  was  soon  perceived 
that  the  girl  had  been  polluted  when  lying  dead  in  her  bed.     It 

•  Journal  of  Psycliological  Med.,  vol.  ii.  p.  .577. 

509 


§  626.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

was  proved  that  the  guard  had  been  bribed  ;  and  soon  other  revela- 
tions showed  that  this  was  not  the  first  time  the  prisoner,  who  had 
received  a  good  education,  was  in  easy  circumstances,  and  belonged 
to  a  good  family,  had  performed  the  act.  The  trial  proved  that  he 
had  frequently  before  gained  access  to  the  bed  of  dead  young 
women,  and  there  given  himself  up  to  his  detestable  passion.^ 

§  625.    Psychologically,  it  is  scarcely  necessary  here  to  repeat 
B  tth  what   has   been    demonstrated    as    to   other   pretended 

must  pro-  "monomanias,"  that  there  is  no  such  form  of  insanity 
ceed  from  .55  •     •  r-    •  •  f  n  ^ 

general  in-     as  "  erotomania,     consisting  ot    insanity  01  the  sexual 

they^couM  impulses,  all  the  rest  of  the  individual  so  alfected  re- 
be  resisted,  gaining  sane.  No  doubt  sexual  anomalies  are  constant 
incidents  of  insanity,  and  for  them  an  insane  person  is  not  penally 
responsible.  But  in  all  cases  where  the  mind  is  sane,  the  ofi'ender 
against  laws  prohibiting  sexual  offences  is,  on  ethical  as  well  as 
psychological  and  juridical  grounds,  to  be  held  penally  responsible. 
And  this  results  from  the  position,  heretofore  fully  sustained.^  that 
wherever  there  is  reason  there  is  responsibility,  and  wherever  there 
is  responsibility,  crime  should  be  punished  in  proportion  to  the  grade 
of  guilt. 

5.    '■'-Pseudonomania''^  Qniorhid  lying  propensity'). 

§  626.    By  what  process  that  which  in  its  elementary  stage  is  a 
mere  nearation,  i.  e.  the   incapacity  so  generally  notice- 

Lnreason-  o  '  x  ./  o  j   ^  ^ 

able  to  con-  able  in  very  young  children  of  accurate  narration,  is 
a  distinct  concluded  to  be  a  mania,  it  would  be  difficult  to  say. 
mama.  -g^^  ^^   -^  ^^^  ^^^  ^^  -^  ^j^^^  tendency  defined  by  Dr. 

Ray.^  "  An  inordinate  propensity  to  lying"  "  is  also  of  no  un- 
common occurrence  in  society  ;  and  most  of  the  readers  of  this 
work  have  probably  met  with  instances  of  it  in  people  whose  morals 
in  other  respects  were  irreproachable,  and  whose  education  had  not 
been  neglected.  The  maxim  of  Jeremy  Bentham,  that  it  is  easier 
for  men  to  speak  the  truth,  and  therefore  they  are  more  inclined 
to  do  so  than  to  utter  falsehood,  seems,  in  them,  to  be  completely 
reversed,  for  they  find  nothing  more  difficult  than  to  tell  the  truth. 

>  See  Renaudin  sur  les  Maladies  Men-        ^  gupra,  §§  115, 188,  403. 
tales,  p.  764,  Paris,  1854.  ^  Ray  on  Insanity,  p.  193. 

610 


PSEUDONOMANIA.  [§  627. 

In  repeating  a  story  which  they  have  heard  from  others,  they  are 
sure  to  embellish  it  with  exaggerations  and  additions,  till  it  can 
scarcely  be  recognized,  and  are  never  known  to  tell  the  same  story 
twice  alike.  Not  even  is  the  slightest  groundwork  of  truth  neces- 
sary, in  order  to  call  forth  the  inventions  of  perverted  minds,  for 
they  as  often  flow  spontaneously,  in  the  greatest  profusion,  as  when 
based  on  some  little  foundation  in  fact.  This  propensity  seems  to 
result  from  an  inability  to  tell  the  truth,  rather  than  from  any  other 
cause,  as  it  can  be  traced  to  no  adequate  motive,  and  is  often  in- 
dulged when  truth  would  serve  the  interest  of  the  individual  better. 
Like  that  last  mentioned,  it  is  liable  to  degenerate  into  unequivocal 
mania,  of  which  it  is  sometimes  a  preliminary  symptom,  and  is  also 
quite  a  common  feature  in  this  disease — a  circumstance  which  Rush 
considers  as  proof  of  its  physical  origin." 

§  627.  Dr.  Rush  more  philosophically  traces  this  habit,  for  such 
it  should  be  more  properly  called,  to  self-indulgence  in  The  habit  is 
untruth.  "  There  are  many  instances  of  persons  of  '^oiuitary. 
sound  understandings,  and  some  of  uncommon  talents,  who  are 
affected  with  this  lying  disease  in  the  will.  It  diifers  from  excul- 
pative, fraudulent,  and  malicious  lying,  in  being  influenced  by  none 
of  the  motives  of  any  of  them.  Persons  thus  diseased  cannot  speak 
the  truth  upon  any  subject,  nor  tell  the  same  story  twice  in  the 
same  way,  nor  describe  anything  as  it  has  happened  to  other  people. 
Their  falsehoods  are  seldom  calculated  to  injure  any  body  but  them- 
selves, being  for  the  most  part  of  a  hyperbolical  or  boasting  nature  ; 
but  now  and  then  they  are  of  a  mischievous  nature,  and  injurious 
to  the  characters  and  property  of  others.  That  it  is  a  corporal  dis- 
ease I  infer  from  its  sometimes  appearing  in  mad  people  who  are 
remarkable  for  veracity  in  the  healthy  states  of  their  minds,  several 
instances  of  Avhich  I  have  known  in  the  Pennsylvania  Hospital. 
Persons  aflected  with  this  disease  are  often  amiable  in  their  tempers 
and  manners,  and  sometimes  benevolent  and  charitable  in  their  dis- 
positions. Lying  as  a  vice  is  said  to  be  incurable.  The  same  thing 
may  be  said  of  it  as  a  disease,  when  it  appears  in  adult  life.  It  is 
generally  the  result  of  defective  education.  It  is  voluntary  in 
cliildJiood,  and  becomes  involuntary ,  like  certain  muscular  actions^ 
from  habit.  Its  only  remedy  is  bodily  pain  inflicted  by  tlie  rod,  or 
confinement,  or  ahsti^ience  from  food ;  for  children  are  incapable 

511 


§  630.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

of  being   permanently  influenced  by  appeals   to   reason,  natural 
affection,  gratitude,  or  even  a  sense  of  shame. "^ 

§  628.  No  doubt  the  insane  are  irresponsible  for  the  untruths 
they  state,  when  such  untruths  are  involuntary,  e.  g.  the 
sane  are        result  of  delusion  ;  but  that  they  can  be  rightly  made 
^^^vohln-^    responsible   for  voluntary  untruths,  and  by  correction 
r''th^°'        ^^y  ^®  checked  in  the  utterance  of  such  untruths,  the 
ordinary  discipline  of  lunatic  asylums  shows. 
§  629.  But  with  the  sane,  while  it  is  unquestionable  that  false- 
hood may  become  a  habit,  yet,  like  all  other  bad  habits, 
not  create      no  matter  how  inveterate,  it  brings  with  it  no  irrespon- 
iwntY°°^^'     sibility.    Were  it  otherwise,  a  chief  motive  in  preventing 
the  habit  from  becoming  fixed  would  be  removed ;  and, 
in  fact,  a  powerful  stimulus  given  in  the  other  direction.     The  law 
would  then  virtually  say,  "  learn  to  lie — let  the  habit  become  in 
curable — and  then  you  can  get  goods  by  false  pretences  without 
any  danger  of  punishment ;  and  even  to  an  action  for  restitution  or 
for  damages,  you  can  plead  that  you  are  irresponsible,  and  there- 
fore protected  against  suit."     But  the  law  says  no  such  thing.     It 
sternly  but  wisely  declares  that  every  sane  man  is  responsible, 
criminally  and  civilly,  for  his  statements  ;  and,  if  he  is  habitually 
false,  this  "  habit,"  in  a  criminal  suit,  is  only  viewed  as  aggravat- 
ing his  guilt.     Truthfulness  among  sane  persons,  when  not  actually 
existing,  must  be  created  by  the  force  of  general  penal  laws.^ 

6.  ^'  OiJceiomania'^  (morbid  state  of  domestic  affections). 

§  680.  At  the  outset  it  is  proper  to  state  that  while  this  state  is 
often  a  sign  of  general  insanity,  it  has  no  existence, 
description  either  in  sound  psychology  or  law,  as  an  independent 
"^mania."  "  monomania."  Of  this,  in  its  general  shape,  Prichard 
thus  speaks :  "  There  are  many  individuals  living  at 
large,  and  not  entirely  separated  from  society,  who  are  affected  in 
a  certain  degree  by  this  modification  of  insanity.  They  are  re- 
puted persons  of  singular,  wayward,  and  eccentric  character.  An 
attentive  observer  may  often  recognize  something  which  leads  him 
to  entertain  doubts  of  their  entire  sanity  ;  and  circumstances  are 
sometimes  discovered,  on  inquiry,  which  assist  in  determining  his 

!  Rush  on  the  Mind,  p.  262.  «  See  supra,  §§  115,  188,  403. 

512 


OIKEIOMANIA.  [§  631. 

opinion.  In  many  instances  it  is  found  that  there  is  an  hereditary 
tendency  to  madness  in  the  family,  or  that  several  relatives  of  the 
person  affected  have  labored  under  disease  of  the  brain.  The  in- 
dividual himself  is  discovered,  in  a  former  period  of  life,  to  have 
sustained  an  attack  of  madness  of  a  decided  character.  His  temper 
and  disposition  are  found,  on  inquiry,  to  have  undergone  a  change, 
to  be  not  what  they  were  previously  to  a  certain  time  ;  he  has 
become  an  altered  man  ;  and  this  difference  has  perhaps  been  noted 
from  the  period  when  he  sustained  some  reverse  of  fortune  which 
deeply  affected  him,  or  since  the  loss  of  some  beloved  relative.  In 
other  instances  the  alteration  in  his  character  has  ensued  immedi- 
ately on  some  severe  shock  which  his  bodily  constitution  has  under- 
gone. This  has  either  been  a  disorder  affecting  the  head,  a  slight 
attack  of  paralysis,  a  fit  of  epilepsy,  or  some  fever  or  inflammatory 
disorder,  Avhich  has  produced  a  perceptible  change  in  the  habitual 
state  of  the  constitution.  In  some  cases  the  alteration  in  temper 
and  habits  has  been  gradual  and  imperceptible,  and  it  seems  only 
to  have  consisted  in  an  exaltation  or  increase  of  peculiarities  which 
were  always  more  or  less  natural  and  habitual."^ 

§  631.   Very  often  this  domestic  perversity  is  associated  with  the 
most  complacent  benignity  out  of  doors.      Zimmerman, 
whilst    he    was    inculcating    and    professing    the    most   perversity 
serene  benevolence,  was,  by  his  tyranny,  driving  his    cfated^wlth 
son  into  madness,  and  making  his  daughter  an  outcast   social  ur- 

,     '^  ^  banity. 

from  home.     Goethe — no  inapt  observer  of  human  na- 
ture— says,  "  Zimmerman's  harshness  towards  his  children  was  the 
effect  of  hypochondria — a  sort  of  madness  or  moral  assassination  to 
which  he  himself  fell  a  victim  after  sacrificing  his  offspring."^ 

■  Cited,  Ray  on  Insanity,  pp.  16&-9.  rangement  of  the  domestic  affections. 

See  Feuclitersleben's  views  on  this  By  the  indulgence  of  this  morbid  ten- 
point.  Principles  of  Medical  Psycho-  dency  to  torture  the  object  of  his  most 
logy,  being  the  outlines  of  a  Course  of  cherished  love,  he  first  succeeded  in 
Lectures  by  Baron  von  Feuchtersleben,  crushing  under  the  weight  of  despair 
M.D.,  Vienna,  1845.  Translated  from  a  woman  whom  he  really  loved,  and 
the  German  by  the  late  H.  Evans  then,  by  the  recoil,  in  subjecting  him- 
Lloyd,  Esq.  Revised  and  edited  by  self  to  that  most  miserable  of  all  fates, 
G.  B.  Babington,  M.D.,  F.R.S.,  etc.  that  of  an  insane  old  age.  Take,  as  a 
London  :  printed  for  the  Sydenham  scene  in  the  first  awful  drama,  the  fol- 
Society,  1847,  p.  204.  lowing  narrative  by  Mr.  Sheridan  :   "A 

2  Dean  Swift's  life  furnishes  a  strik-  short  time    before    Stella   died,"  says 

ing  illustration  of  this  species  of  de-  he,  "a  scene  passed  between  the  Dean 

VOL.  I. — 33  513 


§  632.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCflOLOGIOALLT. 

§  632.    Illustrations  of  this  phase  will  be  found  in  the  following 
sections.     At  present  it  is  sufficient  to  call  attention  to  one  feature, 


and  her,  an  account  of  which.  I  had 
from  my  father,  and  which  I  shall  re- 
late with  reluctance,  as  it  seems  to  bear 
more  hard  on  Swift's  humanity  than 
any  other  point  of  his  conduct  in  life. 
As  she  found  her' final  dissolution  ap- 
proaching, a  few  days  before  it  hap- 
pened, in  the  presence  of  Dr.  Sheridan, 
she  addressed  Swift  in  the  most  earnest 
and  pathetic  terms  to  grant  her  dying 
request,  '  that,  as  the  ceremony  of 
marriage  had  passed  between  them,  in 
order  to  put  it  out  of  the  power  of 
slander  to  be  busy  with  her  fame  after 
death,  she  adjured  him,  by  their 
friendship,  to  let  her  have  the  satis- 
faction of  dying,  at  least — though  she 
had  not  lived — liis  acknowledged  wife.' 
Swift  made  no  reply,  but,  turning  on 
his  heel,  walked  silently  out  of  the 
room,  nor  ever  saw  her  afterwards 
during  the  few  days  she  lived.  This 
behavior  threw  her  into  unspeakable 
agonies,  and  for  a  time  she  sunk  under 
the  weight  of  so  cruel  a  disappoint- 
ment." 

No  wonder  was  it  that,  when  under 
the  influence  of  the  remorse  which  was 
too  late  awakened,  his  powerful  sen- 
sibilities were  aroused  to  the  full  con- 
sciousness of  his  guilt,  he  would  beat 
his  forehead  for  night  after  night,  and 
stride  to  and  fro  in  his  deserted  apart- 
ment, until  at  last  the  only  change 
became  that  from  delirium  to  melan- 
choly, and  from  melancholy  to  de- 
lirium. Dr.  Winslow  gives  us  the 
following  glimpses  of  the  closing 
scenes  : — 

"The  most  minute  account  of  this 
melancholy  period  is  given  by  Dr. 
Delaney  : — 

"  'In  the  beginning  of  the  year  1741 
his  understanding  was  so  much  im- 
paired, and  his  passion  so  greatly  iia- 

514 


creased,  that  he  was  utterly  incapable 
of  conversation.  Strangers  were  not 
permitted  to  approach  him,  and  his 
friends  found  it  necessary  to  have 
guardians  appointed  of  his  person  and 
estate.  Early  in  the  year  1742  his 
reason  was  wholly  subverted,  and  his 
rage  became  absolute  madness.  The 
last  person  whom  he  knew  was  Mrs. 
Whiteaway,  and  the  sight  of  her,  when 
he  knew  her  no  longer,  threw  him  into 
fits  of  rage  so  violent  and  dreadful, 
that  she  was  forced  to  leave  him  ;  and 
the  only  act  of  kindness  that  remained 
in  her  power  was  to  call  once  or  twice 
at  the  deanery  to  inquire  after  his 
health,  and  see  that  jiroper  care  was 
taken  of  him.  Sometimes  she  would 
steal  a  look  at  him  when  his  back  was 
towards  her,  but  did  not  venture  into 
his  sight.  He  would  neither  eat  nor 
drink  when  the  servants  were  in  the 
room.  His  meat,  which  was  served  up 
ready  cut,  he  would  sometimes  sufi'er 
to  stand  an  hour  upon  the  table  before 
he  would  touch  it,  and  at  last  he  would 
eat  it  walking,  for  during  this  miser- 
able state  of  mind  it  was  his  constant 
custom  to  walk  ten  hours  a  day. 

"  '  In  October,  1742,  after  his  fi-enzy 
had  continued  several  months,  his  left 
eye  swelled  to  the  size  of  an  egg,  and 
tlie  lid  appeared  to  be  so  much  inflamed 
and  discolored,  that  the  surgeon  ex- 
pected it  would  mortify  ;  several  large 
boils  also  broke  out  on  liis  arms  and 
body.  The  extreme  pain  of  this  tumor 
kept  him  waking  near  a  month  ;  and 
during  one  week  it  was  with  difficulty 
that  five  persons  could  prevent  him 
from  tearing  out  his  eyes.  Just  before 
the  tumor  perfectly  subsided  and  the 
pain  left  him,  he  knew  Mrs.  White- 
away, took  her  by  the  hand,  and  spoke 
to  her  with  his  former  kindness  ;  that 


OIKEIOMANIA.  [§  633. 

which  is  thus  admirably  sketched  by  Dr.  Mayo :  "  Marital  un- 
kindness  is  subversive  of  soundness  of  mind  in  the  person  on  whom 
it  is  exercised  ;  and  exercised  it  is  in  a  thousand  ways  in  this 
country,  without  violence  being  had  recourse  to.  The  state  of  the 
law,  as  Mr.  Dickens  well  observes  and  terrifically  proves,  is  unpro- 
tective  of  wives.  But  the  mischief  is  not  unavenged ;  and  here 
the  case  of  the  husband  retributively  commences.  Many  men  are 
living  in  a  state  of  continuous  and  exhausting  remorse,  under  the 
consciousness  that  this  system  of  torture  is  being  carried  on  by 
them.  For,  when  once  the  habit  is  formed,  they  can  neither  shake 
it  off,  nor  bear  their  self  consciousness  under  it. 

'  Culpam  poena  premit  comes.' 

I  need  not  speak  of  their  retrospects,  if  they  should  outlive  the 
object  of  their  tyranny."^ 

§  633.  '^A  very  common  feature  of  moral   mania,"  says  Dr. 
Winslow,  "  is  a  deep  perversion  of  the  social  affections, 
whereby  the  feelings  of  kindness  and  attachment  that    of  this 
flow  from  the  relations  of  father,  husband,  and  child,  are      ™'^"^^- 
replaced  by  a  perpetual  inclination  to  tease,  worry,  and  embitter 
the  existence  of  others.     The  ordinary  scene  of  its  manifestations 
is  the  patient's  own  domestic  circle,  the  peace  and  happiness  of 
which  are  effectually  destroyed  by  the  outbreakings  of  his  ungovern- 
able temper,  and  even  by  acts  of  brutal  ferocity.     Frederick  Wil- 
liam of  Pi'ussia,  father  of  Frederick  the  Great,  undoubtedly  labored 
under  this  form  of  moral  mania ;  and  it  furnishes  a  satisfactory  ex- 
planation of  his  brutal  treatment  of  his  son,  and  his  utter  disregard 
for  the  feelings   or  comfort  of  any  other  member  of  his  family. 
About  a  dozen  years  before  his  death,  his  health  gave  way  under 

flay  and  the  following  he  khew  his  difficulty,  he  prevailed  on  to  walk 
physician  and  surgeon  and  all  his  across  the  room.  In  this  state  of  hope- 
family,  and  appeared  to  have  so  far  less  imbecility  he  is  said  to  have  re- 
recovered  his  understanding  and  tem-  mained  silent  a  whole  year.  In  1744 
per,  that  the  surgeon  was  not  without  he  spoke  once  or  twice  to  his  servant, 
hopes  that  he  might  once  more  enjoy  after  which  he  remained  perfectly 
society  and  be  amused  with  the  com-  silent  until  the  latter  end  of  October, 
pany  of  his  old  friends.  This  hope,  1745,  when  he  expired,  in  the  78th 
however,  was  but  of  short  duration;  year  of  his  age.' " 

for  a  few  days  afterwards  he  sank  into  '  Mayo    on    Medical    Testimony    in 

a   state    of    total    insensibility,    slept  Lunacy,  pp.  137,  138. 
much,   and   could   not,    without  great 

515 


§  633.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

his  constant  debauches  in  drunkenness  ;  he  became  hypochondriacal, 
and  redoubled  his  usual  religious  austerities.  He  forbade  his  family 
to  talk  of  any  subject  but  religion,  read  them  daily  sermons,  and 
compelled  them  to  sing,  punishing  with  the  utmost  severity  any  in- 
attention to  these  exercises.  The  prince  and  his  elder  sister  soon 
began  to  attract  a  proportionate  share  of  his  hostility.  He  obliged 
them  to  eat  and  drink  unwholesome  or  nauseous  articles,  and  even 
spit  in  their  dishes,  addressing  them  only  in  the  language  of  invec- 
tive, and  at  times  endeavoring  to  strike  them  with  his  crutch.  About 
this  time  he  attempted  to  strangle  himself,  and  would  have  accom- 
plished his  design  had  not  the  queen  come  to  his  rescue.  His  bru- 
tality towards  the  prince  arrived  to  such  a  pitch,  that  he  one  morn- 
ing seized  him  by  the  collar  as  he  entered  his  bed-chamber,  and 
began  to  beat  him  with  a  cane  in  the  most  cruel  manner,  till  obliged 
to  desist  from  pure  exhaustion.  On  another  occasion  shortly  after, 
he  seized  his  son  by  the  hair,  and  threw  him  on  the  ground,  beat- 
ing him  till  he  was  tired,  when  he  dragged  him  to  a  window,  appa- 
rently for  the  purpose  of  throwing  him  out.  A  servant,  hearing 
the  cries  of  the  prince,  came  to  his  assistance,  and  delivered  him 
from  his  hands.  Not  satisfied  Avith  treating  him  in  the  most  bar- 
barous manner,  he  connived  at  the  prince's  attempts  to  escape  from 
his  tyranny,  in  order  that  he  might  procure  from  a  court-martial  a 
sentence  of  death ;  and  this  even  he  was  anxious  to  anticipate  by 
endeavoring  to  run  him  through  the  body  with  a  sword.  Not  suc- 
ceeding in  procuring  his  death  by  judicial  proceedings,  he  kept  him 
in  confinement,  and  turned  all  his  thoughts  towards  converting  him 
to  Christianity.  At  this  time,  Ave  first  find  mention  of  any  delusion 
connected  Avith  his  son,  though  it  probably  existed  before.  In  his 
correspondence  with  the  chaplain  to  whom  he  had  intrusted  the 
charge  of  converting  the  prince,  he  speaks  of  him  as  one  who  had 
committed  the  most  heinous  sins  against  God  and  the  king,  as  hav- 
ing a  hardened  heart,  and  being  in  the  fangs  of  Satan.  Even  after 
he  became  satisfied  with  the  repentance  of  the  prince,  he  showed 
no  disposition  to  relax  the  severities  of  his  confinement.  He  was 
kept  in  a  miserable  room,  deprived  of  all  the  comforts  and  many  of 
the  necessaries  of  life,  denied  the  use  of  pens,  ink,  and  paper,  and 
allowed  scarcely  food  enough  to  prevent  starvation.  His  treatment 
of  the  princess  was  no  less  barbarous.  She  was  also  confined,  and 
every  eiFort  used  to  make  her  situation  thoroughly  wretched ;  and 
516 


OIKEIOMANIA.  [§  634. 

though,  after  a  few  years,  he  relaxed  his  persecution  of  his  children, 
the  general  tenor  of  his  conduct  towards  his  family  and  others 
evinced  little  improvement  in  his  disorder  till  the  day  of  his  death. "^ 

§  634.  The  wife  of  John  Wesley  was  affected  with  this  "  mono- 
mania ;"  or,  to  speak  more  properly,  was  in  the  habit  of  giving  way 
to  a  vicious  and  perverse  temper,  which  brought  its  retribution  at 
last  in  the  misery  it  inflicted  on  herself.  "  The  worst  part  of 
Mrs.  Wesley's  conduct,"  says  Watson,  in  his  life  of  Wesley,  "  and 
which  only  the  supposition  of  a  degree  of  insanity,  excited  by 
jealousy,  can  palliate,  was  that  she  interpolated  several  letters, 
which  she  had  intercepted,  so  as  to  make  them  bear  a  bad  construc- 
tion ;  and,  as  Mr.  Wesley  had  always  maintained  a  large  corre- 
spondence with  all  classes  of  persons,  and  among  others  with  pious 
females,  in  some  of  whose  letters  there  were  strong  expressions  of 
Christian  affection,  she  availed  herself  of  this  means  of  defaming 
him.  Some  of  these  she  read  to  different  persons  in  private,  and 
especially  to  Mr.  Wesley's  opponents  and  enemies,  adding  ex- 
tempore passages  in  the  same  tone  of  voice,  but  taking  care  not  to 
allow  the  letters  themselves  to  be  read  by  the  auditors  ;  and  in  one 
or  two  instances  she  published  interpolated  or  forged  letters  in  the 
public  prints.  How  he  conducted  himself  amidst  these  vexations, 
the  follovv'ing  passage  in  a  letter  from  Miss  Wesley  to  a  friend, 
written  a  little  before  her  death,  will  show.  They  are  at  once 
important,  and  explanatory  of  the  kind  of  annoyance  to  which  this 
unhappy  marriage  subjected  her  uncle,  and  as  containing  an  anec- 
dote strongly  illustrative  of  his  character: — 

"  I  think  it  was  in  the  year  1775,  my  uncle  promised  to  take  me 
with  him  to  Canterbury  and  Dover.  About  this  time  Mrs.  Wesley 
had  obtained  some  letters  which  she  used  to  the  most  injurious  pur- 
poses, misinterpreting  spiritual  expressions,  and  interpolating  words. 
These  she  read  to  some  Calvinists,  and  they  were  to  be  sent  to  the 
Morning  Post.  A  Calvinist  gentleman,  who  esteemed  my  father 
and  uncle,  came  to  the  former,  and  told  him  that,  for  the  sake  of 
religion,  the  publication  should  be  stopped,  and  Mr.  Wesley  be 
allowed  to  answer  for  himself.  As  Mrs.  Wesley  had  read  but  did 
not  show  the  letters  to  him,  he  had  some  doubts  of  their  authen- 
ticity ;  and  though  they  were  addressed  to  Mr.  John  Wesley,  they 

'   Vide  Lord  Dover's  Life  of  Frederick  ;  Winslow's  Anatomy  of  Suicide,  pp. 
233,  234,  235. 

517 


§•634.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

might  be  forgeries  ;  at  any  rate  he  ought  not  to  leave  town  at  such 
a  juncture,  but  clear  the  matter  satisfactorily. 

"  My  dear  father,  to  whom  the  reputation  of  my  uncle  was  far 
dearer  than  his  own,  immediately  saw  the  importance  of  refutation, 
and  set  off  to  the  Foundery  to  induce  him  to  postpone  his  journey, 
while  I,  in  my  own  mind,  was  lamenting  such  a  disappointment, 
having  anticipated  it  with  all  the  impatience  natural  to  my  years. 
Never  shall  I  forget  the  manner  in  which  my  father  accosted  my 
mother  on  his  return  home.  '  My  brother,'  says  he,  '  is  indeed  an 
extraordinary  man.  I  placed  before  him  the  importance  of  the 
character  of  a  minister  ;  the  evil  consequences  which  might  result 
from  his  indifference  to  it ;  the  cause  of  religion  ;  stumbling-blocks 
cast  in  the  way  of  the  weak ;  and  urged  him  by  every  relative  and 
public  motive  to  answer  for  himself,  and  stop  the  publication.  His 
reply  was.  Brother,  when  I  devoted  to  God  my  ease,  my  time,  my 
life,  did  I  except  my  reputation  ?  No.  Tell  Sally  I  will  take  her 
to  Canterbury  to-morrow.'  " 

"  I  ought  to  add,  that  the  letters  in  question  were  satisfactorily 
proven  to  be  mutilated,  and  no  scandal  resulted  from  his  trust  in 
God. 

"  Some  of  these  letters,  mutilated,  interpolated,  or  forged  by 
this  unhappy  woman,  have  got  into  different  hands  and  are  still 
preserved.  In  the  papers  of  the  Wesley  family,  recently  collected, 
there  are,  however,  sufiBcient  materials  for  full  explanation  of  the 
whole  case  in  detail ;  but  as  Mr.  Wesley  himself  spared  it,  no  one 
Avill,  I  presume,  ever  further  disturb  this  unpleasant  affair,  unless 
some  publication  on  the  part  of  an  enemy,  for  the  sake  of  gain,  or 
to  gratify  a  party  feeling,  should  render  it  necessary  to  defend  the 
character  of  this  holy  and  unsuspecting  man."^ 

1  The  following  is  the  inscription  on  a  monument  erected  in  Horsley  Down 
church,  in  Cumberland,  England  : — 

Here  lie  the  bodies  of 

Thomas  Bond  and  Mary  his  wife. 

She  was  temperate,  chaste,  and  charitable. 

But 

She  was  proud,  peevish,  and  passionate. 

She  was  an  affectionate  Avife,  and  a  tender  mother. 

But 

Her  husband  and  child  whom  she  loved,  seldom  saw  her  countenance  without  a 

disgusting  frown. 
Whilst  she  received  visitors  whom  she  despised,  with  an  endearing  smile. 

518 


OIKEIOMANIA.  [§  635. 

This  species  of  insanity,  supposing  mental  derangement  to  be 
substantively  proved,  will  invalidate  a  will  made  under  its  imme- 
diate influence.^ 

§  635.  It  is  hardly  necessary  to  repeat  that  "  morbid  domestic 
feeling"  is  not  to  be  viewed  as  a  distinct  "  monomania,"  capable  of 
psychological  proof  as  such.     Frequently  it  is  a  mark  of  insanity. 


Her  behavior  was  discreet  towards  strangers, 

But 

Imprudent  in  lier  family. 

Abroad  her  conduct  was  influenced  by  good  breeding, 

But 

At  home  by  ill  temper. 

She  was  a  professed  enemy  to  flattery,  and  was  seldom  known  to  praise  or  commend  ; 

But 

The  talents  in  which  she  principally  excelled 

Were  difference  of  opinion,  and  discovering  flaws  and 

Imperfections. 

She  was  an  admirable  economist, 

And  without  prodigality. 

Dispensed  plenty  to  every  person  in  her  family. 

But 

Would  sacrifice  their  eyes  to  a  farthing  candle. 

She  sometimes  made  her  husband 

Happy  with  her  good  qualities, 

But 

Much  more  frequently  miserable  with  her 

Many  failings. 

Insomuch  that  in  thirty  years'  cohabitation, 

He  often  lamented  that 

Maugre  all  her  virtues, 

He  had  not  on  the  whole  enjoyed  two  years 

Of  matrimonial  comfort. 

At  length 

Finding  she  had  lost  the  affection  of  her  husband,  as  well  as  the  regard  of  her 

neighbors,  family  disputes  having  been  divulged  by  servants. 

She  died  of  vexation,  July  20,  1768, 

Aged  48  years. 

Her  wornout  husband  survived  her  four  months  and  two  days,  and  departed  this  life 

November  28, 1768, 

In  the  54  year  of  his  age. 

William  Bond,  brother  to  the  deceased. 

Erected  this  stone  as  a 

Weekly  monitor  to  the  wives  of  this  parish. 

That  they  may  avoid  the  infamy  of  having 

•     Their  memories  handed  down  to  posterity 

With  a  patchwork  character. 

'  See  supra,  §§  34-60. 

519 


§  636.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

Oikeio-  But  with  sane  persons  its  existence  is  the  just  subject 
a  distinct      of  moral  and  social  as  well  as  of  penal  reprobation.     It 

Tsmnoi  ^^^  '^^  ''^'^^  ^^^^  *^®  ^'^^^  ^^J  ^^  unable  to  reach  the  par- 
create  irre-  ticular  offences  into  which  this  form  of  evil  temper  runs. 
sponsibility  .        .  •  i     • 

in  the  sane.  It  carries  With  it,  however,  as  has  been  said,  its  own 
accuser  and  condemner  in  the  misery  to  self  to  which  it 
leads.  And,  so  far  as  it  exhibits  itself  in  overt  acts,  the  tendency 
is  one  Avhich  it  is  the  duty  and  within  the  jurisdiction  of  the  state, 
by  general  penal  laws,  to  repress.^ 


7.  ^^ Suicidal  mania'^  (inorhid propeymty  to  self-destruction^. 


§  636.  That  this  propensity  may,  in  the  eye  of  the 

law,  coexist  with  sanity,  has  been  already  shown.^     To 

consistent     what -extent  suicide   avoids  a  policy  of  life   insurance, 

with  sanity  „       .        ,.  .        o 

has  been  also  the  subject  of  prior  discussion.'* 


Suicidal 
propensity 


'  See  supra,  §§  115,  188,  403.  For 
articles  on  this  topic  see  Journ.  Med. 
Leg.  Soc.  N.  Y.  (N.  Y.  1872)  pp.  1-37, 
135-143. 

2  Supra,  §  241. 

3  Supra,  §§  228-241. 

The  constantly  increasing  occurrence 
of  suicide  particularly  attracts  the  pub- 
lic attention  at  present  (1882) .  During 
the  years  1875  to  1878  statistics  showed 
an  average  of  280  suicides  to  every 
million  inhabitants  in  Berlin,  285  in 
Vienna,  400  in  Paris,  450  in  Leipsic  ; 
London,  on  the  contrary,  showed  a 
smaller  average  than  any  other  great 
city — only  85  to  a  million.  The  increase 
of  suicide  is  illustrated  by  the  fact  that 
in  Berlin  in  1881  it  is  stated  not  to  be  an 
unusual  circumstance  for  four  persons 
in  one  day  to  die  by  their  own  hands. 
At  present  the  problem  of  suicide  is  be- 
ing scientifically  examined  from  differ- 
ent points  of  view.  The  work  of  Dr. 
Masaryk,  "  Der  Selbstmord  als  sooiale 
Masseuerscheinung,  Vienna,  1881," 
and  especially  the  writings  of  the  emi- 
nent compiler  of  moral  statistics,  Alex- 
ander von  CEttingen,  upon  acute  and 

520 


chronic  suicide,  undertake  to  prove 
that  the  increase  of  suicide  is  a  peculiar 
result  of  over-development  of  culture. 
Among  the  facts  which  Herr  von 
CEttingen  cites,  one  is  especially  wor- 
thy of  notice — that  suicide  finds  its 
greatest  number  of  victims  in  the  king- 
dom of  Saxony,  aiid  in  the  city  of 
Leipsic,  according  to  CEttingen,  "the 
Chimborazo  of  suicide."  "  People  kill 
themselves  more  in  Saxony  than  in 
any  other  part  of  the  earth." 

The  numbers  of  suicides  increase  as 
we  approach  Saxony.  In  the  plains 
of  Sarmatia  the  proportion  is  only  30 
in  every  million,  in  the  Baltic  pro- 
vinces it  increases  to  65,  in  Eastern 
and  Western  Prussia  it  is  almost  100, 
in  Brandenburg  200,  in  the  Saxon 
provinces  235,  and  in  the  kingdom  of 
Saxony  it  is  something  over  400  in  a 
million.  The  average  of  suicide  in- 
creases from  the  south  in  the  same 
proportion  as  it  does  from  the  north  ; 
for  instance,  in  Southern  Bavaria,  the 
average  is  not  quite  70,  while  in  upper 
Franconia,  which  borders  on  Saxony,  it 
is  between  150  and  160.     The  greatest 


SUICIDAL   MANIA.  [§  637. 

§  637.  "  The  pathological  and  etiological  history  of  suicide," 
says  Griesinger,  "  does  not  appertain  entirely  to  the  pro- 

^  ^    ,  ,.   .  ■      f     .        ^     ,  L   •  •      Suicide  not 

vince  01  mental  medicine  ;  in  tact,  whatever  certain  sci-  always  a 
entitle  authorities  may  assert,  we  are  not  warranted  in  of'fifsanity 
coming  to  the  conclusion  that  suicide  is  always  a  symptom 
or  a  result  of  insanity.  There  is  no  insanity  present  where  the 
feeling  of  disgust  with  life  is  in  exact  relation  to  the  actual  circum- 
stances ;  where  evident  moral  causes  exist  which  sufficiently  account 
for  the  act ;  when  the  resolution  has  been  deliberately  made,  and 
might  have  been  abandoned  had  the  circumstances  changed  ;  and  in 
which  we  discover  no  other  symptom  of  mental  derangement. 

"  When  a  man  of  very  delicate  feelings  puts  an  end  to  his  ex- 
istence, that  he  may  not  survive  the  loss  of  his  honor,  or  of  some 
other  highly  valued  possession  which  forms  an  intimate  part  of  his 
intellectual  being — when  a  man  prefers  death  to  a  miserable,  con- 
temptible life,  full  of  mental  and  physical  ills — morality,  indeed, 
may  call  him  to  account  for  the  deed,  but  there  exists  no  ground 
on  which  we  can  consider  him  insane  ;  the  abhorrence  of  life  and 
the  idea  of  self-annihilation  correspond  to  the  intensity  of  the  pain- 
ful impressions  which  bear  upon  the  individual,  and  it  is  after  de- 
liberate reflection  that  the  act  is  resolved  upon  and  perpetrated. 

"  But  the  cases  which  come  under  this  category  are  the  rarest ; 
more  frequently  the  tendency  to  commit  suicide  depends  either  upon 
fully  developed  melancholia,  with  all  its  usual  symptoms,  or  (and 
this  is  more  frequent)  on  a  state  closely  bordering  upon  melancholia 
— of  moderate  but  at  the  same  time  general  painful  perversion  of 
the  feelings. 

"  The  apparently  deliberate  and  cold-blooded  act  of  suicide  can, 

number  of  suicides  occur  in  spring  and  points  out  that  in  the  comparatively 
summer,  in  May,  June,  and  July,  in-  nobler  causes  of  despair  (such  as  uu- 
stead  of  in  November  and  December,  as  happy  love,  shame,  and  remorse)  the 
one  would  naturally  suppose ;  the  so-called  nobler  methods  are  used — 
larger  proportion  are  committed  be-  firearms  and  poison.  In  most  of  the 
tween  6  and  8  o'clock  in  the  morning.  European  states  there  is  one  female 
Suicides  by  hanging,  which  Herr  suicide  to  every  three  or  four  male, 
von  CEttingen  calls  "  the  usual  means,"  It  is  a  well-known  fact  that  drunken- 
are  most  frequent  in  Prussia  and  ness  plays  a  prominent  part  in  the 
Saxony  ;  the  four  cases  mentioned  in  statistics  of  suicide. 
Berlin  were  by  this  means.     CEttingen 

521 


§  638.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

Avhen  considered  'per  se,  no  more  prove  the  non-existence  of  insanity 
than  any  other  deliberate  act  committed  in  mental  disease. 

"  The  disposition  to  originate  those  states  of  mental  suffering 
which  most  generally  coincide  with  exhaustion,  coldness,  and  dead- 
ening of  the  reaction  of  the  feelings,  is  precisely  the  same  as  the 
disposition  to  mental  diseases.  When  these  have  once  appeared, 
they  become  fixed,  and  rule  the  individual  the  more  easily  accord- 
ing as  a  feeble  ego  offers  only  slight  resistance  to  them  (p.  51)  ; 
they  therefore  frequently  appear  as  essential  result  of  a  previously 
weak  character.  They  are,  however,  essentially  distinguished  from 
the  abhorrence  of  life  which  is  the  result  of  certain  explicable  moral 
causes,  by  their  internal  origin,  by  the  want  of  sufficient  moral 
causes  to  account  for  the  act ;  frequently  by  their  evident  appear- 
ance in  consequence  of  some  physical  disease,  by  presenting  periodic 
exacerbations  without  any  moral  cause  ;  and,  finally,  by  being  some- 
times undoubtedly  hereditary.  When  the  whole  psychical  life  is 
governed  by  this  perversion  of  the  feelings,  there  arise  no  limiting 
or  restricting  ideas  and  impulses  to  resist  the  thought,  be  it  sponta- 
neous or  suggested,  of  self-destruction  ;  or  these  ideas  and  impulses 
soon  become  worn  out  and  exhausted,  owing  to  the  existence  of 
those  which  constantly,  and  with  the  persevering  obstinacy  of  all 
other  melancholic  dispositions  of  this  kind,  urge  themselves  upon 
the  ego. 

"  Indeed,  the  more  insignificant  the  outward  motives  to  the  deed, 
the  more  likely  are  we  to  find,  in  the  antecedent  history  of  the  in- 
dividual, causes,  or  even  certain  symptoms,  of  incipient  insanity  ; 
and  the  more  barbarous  and  the  more  extraordinary  the  means  em- 
ployed for  the  perpetration  of  the  deed,  the  more  are  we  warranted 
in  considering  it  to  be  a  result  of  some  morbid  perversion  of  the 
faculties."^ 

[§  638  omitted  in  this  edition  as  merely  cumulative.']    ' 

'  See   Griesinger's    Mental    Patliol.,  tion  of  the  subject  of  suicide  yet  pub- 

Syden.   ed.    (1867)  §   125;  Mende,  in  lislied    (Suicide,     etc.      International 

Henke,  Zeitschrift  fiir  Staatsarrneikunde,  Scientific  Series,  N.  Y.,  1881). 

1821 ;  Esquirol,  Maladies  Mentales,  i.  p.  The  result  of  his  researches  as  to  the 

p.  555.  average  of  suicides  per  million  of  Euro- 

The  recent  work  of  Dr.  Henry  Mor-  pean    populations  is  as   follows  :   Ger- 

selli,  of  the  University  of  Turin,   has  mans  of  the  south  and  centre,  or  High 

immediately   been    recognized    as    the  Germans,  165;    Germans  of  the  north 

most  thorough  and  complete  investiga-  or  Low  Germans,  150  ;  Scandinavians, 

522 


DIPSOMANIA. 


[§  639. 


8.    '■'■  Dipsomania'''  (niorhid  propensity  for  drink').     (^TruyiksucTit 

or  Saufsucht.) 

§  639.    One  of  the  occasional  consequences  of  an  indulgence  in 
alcoholic  drinks  is  the   periodic  occurrence  of  a  violent  thirst  for 


128  ;  Celto-Romans,  i.  e.,  French  and 
Belgians,  116  ;  Anglo-Saxons,  70  ;  Mag- 
yars, 52 ;  Flemings,  50  ;  Slavs  of  the 
North,  42  ;  Fins,  40  ;  Celts,  30  ;  Slavs 
of  the  South  and  Slavonians,  30 ; 
Italico-Romans  and  Latini,  27.  Some 
individual  averages  are,  however,  much 
more  extreme.  Thus  the  ratio  of  sui- 
cides per  million  is  over  300  in  Saxony 
and  Saxe-Altenburg  ;  while  in  Ireland 
it  is  only  10.  The  statistics  as  to  the 
increase  of  suicides  are  also  given  ;  and 
from  all  of  these  the  author  concludes 
that  this  increase  and  irregularity  are 
subject  to  definite  ethnic  and  anthro- 
pological laws.  These  race  influences 
seem,  however,  to  be  subordinate  to 
cosmo-natural  influences  —  those  of 
climate,  meteorological  changes,  length 
of  day  and  night,  etc.,  while  they  are 
complicated  by  social  influences.  Here 
Professor  Morselli  discovers  a  propor- 
tion between  insanity  and  suicide. 
He  cites,  moreover,  Wagner  CDie  Gesetz- 
mdssigkeit  in  den  scheinbar  icillkHrlichen, 
menschlichen  Handlungen,  i.  pp.  136,  237) 
to  show  the  influence  of  free  trade,  the 
improvement  in  the  means  of  communi- 
cation, as  well  as  of  similar  and  more 
apparent  causes,  upon  suicide,  conse- 
quent on  the  greater  distribution 
of  money,  which  has  produced  an 
instability  of  riches.  With  these  are 
taken  into  consideration  the  influ- 
ences arising  from  biological  and  social 
conditions  of  individuals,  as  well  as 
the  determining  motives  for  the  act ; 
and  an  inquiry  is  also  made  into  the 
laws  regulating  the  choice  of  places 
and  methods.  The  theory  to  which 
Professor  Morselli  is  finally  led  is  that 
suicide  is  a  phenomenon  of  evolution 


in  civilized  societies  ;  that  it  is  the  re- 
sult of  the  struggle  for  existence  and 
also  for  human  selection  ;  and  that  its 
cure  is  to  be  found  in  the  formation  of 
character  of  a  higher  tyi^e. 

It  will  be  noticed  that  while  Pro- 
fessor Morselli  constructs  his  theories 
by  synthetical  methods  entirely  in 
sympathy  with  the  methods  of  modern 
materialists,  and  his  criticisms  and 
analyses  are  based  solely  upon  abso- 
lute facts,  in  suggesting  a  remedy  he 
leaves  the  domain  of  science,  and  re- 
cognizes a  cure  which  would  have  been 
prescribed  by  the  theologian  or  moral 
philosopher  on  ethical  principles. 
The  cure,  he  says,  is  preventive :  it  is 
' '  to  develop  in  man  the  power  of  well  order- 
ing sentiments  and  ideas  by  v)hich  to  reach 
a  certain  aim  in  life  ;  in  short,  to  give  force 
and  energy  to  the  moral  character."  That 
is  to  say,  the  most  careful,  comprehen- 
sive, and  unbiassed  efl"orts  of  scientific 
genius  only  reaffirm  the  value  of  moral 
training,  teaching,  and  aims.  Pro- 
fessor Morselli  really  leaves  the  phe- 
nomenon of  suicide  unexplained  ;  and 
all  his  research  cannot  prove  the  exist- 
ence of  arbitrary  laws  that  regulate 
this  phenomenon,  if  he  admits  that 
their  force  can  be  multiplied  by  the 
efl"orts  of  individual  character. 

The  geographical  tables  showing  the 
distribution  of  suicide ;  the  tables 
showing  the  proportions  as  to  sex,  age, 
and  occupation ;  as  to  learning  and 
ignorance  —  in  which  connection  he 
maintains  that  suicide  and  education 
advance  pari  passu;  and  the  tables 
showing  the  influence  of  marriage,  are 
well  worthy  of  attention. — T.  I.  W. 

523 


§  640.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSTCHOLOaiCALLT. 
Periodic        intoxicating  liquor — a  thirst  which  is  not  satisfied   until 

craving  for  •  i  i         i 

liquor  not  the  patient  has  drunk  continuously  tor  one,  two,  or  some- 
mon  difr-"^'  times  three  days.  The  passion  then  subsides,  and  he 
ease.  remains    sober  for  weeks,  until  another  attack  of  the 

disease  comes  on.  Liman^  tells  us,  for  instance,  of  an  educated 
young  man  who  was  employed  by  a  princely  family,  who  had  great 
confidence  in  him,  as  a  general  manager  of  their  household.  He 
had  charge,  among  other  things,  of  the  wine-cellar,  and  this  led  to 
his  indulgence  in  wine,  which  gradually  matured  into  a  passion  for 
strongly  alcoholized  drinks.  About  once  every  three  months  this 
seized  him  as  a  sort  of  rage.  He  would  have  baskets  of  wine, 
white  beer,  and  rum  brought  to  his  chamber,  in  which  he  would  at 
such  times  permit  visits  only  from  his  servant  and  his  physician, 
and  he  would  drink  for  days,  under  the  influence  of  intoxication, 
until  disgust  and  nausea  intervened,  and  drinking  lost  its  zest.  He 
would  then  reappear,  having  been  supposed  to  have  been  absent  on 
a  short  journey,  or  to  have  been  kept  at  home  by  sickness,  and 
would  then,  until  a  new  attack  came  on  him,  act  with  perfect  so- 
briety and  self-control.  Thus  at  the  table  of  the  prince  by  w^hom 
he  was  employed  he  never  was  suspected  of  love  for  drink,  and 
died  without  the  secret  being  known.  "  I  never  can  forget,"  says 
Dr.  Liman,  who  attended  him,  "his  earnest  supplications  to  me  to 
relieve  him  from  his  misery  ;  and  I  can  say  that  he  was  at  least 
not  wanting  in  good  intentions,  as  well  as  in  moral  disgust  at  him- 
self." Multitudes  of  analogous  cases  are  familiar  to  those  who 
have  watched  social  life  in  America. 

§  640.  But  is  "  dipsomania,"  or  periodical  paroxysm  for  drink. 
But  "dip-      a  distinct  form  of  insanity?      In  other  words,  are  the 

somania"      mind's  relations  to   alcohol   such,   that  a  person  other- 

not  a  dis-  _  .  .  ^ 

tinct  form     wisc  sane  may  be  insane  as  to   drink,  and  consequently 

msam  y.  jj.j.ggpQjjgj,|3jg  ^qj.  drunkenness  and  its  results  ?  Of  course 
these  questions  are  naturally  answered  in  the  affirmative  by  those 
alienists  who  treat  the  mind  as  a  bundle  of  independent  qualities, 
the  derangement  of  either  of  which  does  not  involve  the  derange- 
ment of  the  others.      On  the  other  hand,^  Ideler,  a  German  psy- 

•  Liman's  Casper,  1871,  p.  647.  See  2  And  see  an  article  in  30  Am. 
assays  in  Proceedings  of  N.  Y.  Med.  Journ.  Ins.  430;  see  Edinburgh  Rev., 
Leg.  Soc.  CN.  Y.  1872),  pp.  38,  374.         No.  cxxxvi.  p.  398. 

524 


DIPSOMANIA.  [§  641. 

chological  physician  of  great  distinction,  treats  "  dipsomania"  as 
simplj  a  bad  habit  of  self-indulgence  ;  and  he  adds,  if  a  man  is  to 
be  irresponsible  for  the  evil  consequences  of  one  bad  habit,  there  is 
no  reason  why  he  should  not  be  irresponsible  for  another.  He  de- 
clares that  love  for  drink,  whether  this  love  be  constant,  or  oc- 
curring in  periodical  paroxysms,  is  conquered  by  force  of  will ;  and 
he  brings  in  to  show  this  the  statistics  of  temperance  societies, 
showing  how  frequently  drunkards  have  been  reformed.  He  points 
to  numerous  individual  cases  in  Avhich  such  reforms  have  been 
known.  And,  indeed,  as  the  disease  has  been  in  so  many  cases 
overcome,  the  duty  of  government,  instead  of  establishing  a  privi- 
leged class  of  drunkards,  who,  by  their  emancipation  from  penal 
law,  would  be  entitled  to  indulge  in  their  passion  and  its  conse- 
quences without  stint,  is,  it  may  well  be  argued,  to  make  drunk- 
enness in  any  shape  a  criminal  oifence,  and  at  the  same  time  pro- 
vide asylums  where  habitual  drunkards  can  be  reformed. 

§  641.  But  in  addition  to  this  objection  to  the   recognition  of 

"  dipsomania"  as  a  distinct  moral  mania,  conferring  irre- 

.    •  .  ...  .  Analoary 

sponsibility  on  those  subject  to  it,  it  may  be  noticed  that    with  other 

if  we  allow  such  a  privilege  to  thirst  for  alcohol,  we  ^pp®^^**^®- 
must  allow  it  to  an  almost  endless  series  of  other  appetites.  The 
passion  for  opium,  taking  the  world  through,  is  as  extensive  as  that 
for  drink  ;  it  is  certainly  as  powerful  and  as  pernicious.  That  it 
is  capable  of  being  reduced  by  moral  influences  (e.  g.  fear  of  dis- 
grace or  punishment)  does  not  distinguish  it  from  dipsomania  pro- 
per, for  in  the  latter  moral  means  have  often  a  marked  eff'ect. 
Craving  for  chloroform,  we  have  recently  been  told,  has  also  become 
a  powerful  mania ;  and  we  have  had  detailed  to  us  cases  in  which 
this  passion  is  declared  to  have  become  "  irresistible."  Among 
less  cultivated  countries  passions  for  particular  forms  of  food  be- 
come in  like  manner  despotic  ;  and  among  the  Esquimaux  this  is 
said  to  exist  in  reference  to  train  oil.  Even  so  clear-headed  and 
energetic  a  prince  as  Charles  V.  had  so  strong  a  passion  for  fish, 
that  he  persisted  in  indulging  in  this  appetite,  though  in  so  doing, 
as  he  was  assured  by  his  physicians,  he  shortened  his  life,  and 
subjected  himself  to  much  bodily  pain.  If,  as  is  maintained  by  the 
classifiers  of  "  monomanias,"  "  dipsomania"  has  its  own  cell,  then 
we  must  have  a  separate  cell  for  the  separate  passion  for  every 
particular  article  of  food  or  drink. 

525 


§  643.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§  642.  But  the  truth  is  that  "  dipsomania,"   so  far  as  it  dis- 
.    ,     .    ,     tinctively  exists,   is   a   physical   rather   than   a   moral 

A  physical,  •>  \  .        . 

not  a  moral  disease.^  There  is  a  craving  in  these  patients,  for  alco- 
holic drinks,  as  there  is  in  other  cases  a  craving  for 
opium  or  for  particular  articles  of  food,  or  for  tobacco,  or  for 
chloroform  ;  or  as  there  is  in  another  class  of  cases  a  craving  for 
restless  action,  or  for  self-indulgent  repose.  But  in  all  these  cases, 
supposing  the  mind  to  be  sane,  the  patient's  will  follows  the  dictates 
of  his  reason.  He  balances  the  gratification  on  the  one  side, 
against  the  evil  consequences  on  the  other.  If  the  latter  appear  to 
him  remote — if  he  thinks  he  may  indulge  just  this  once  without 
being  discovered  or  punished,  and  then  make  this  indulgence  the 
crisis  from  which  to  date  a  new  era  of  self-restraint — he  is  apt  to 
seize  the  gratification.  The  great  point  before  him,  at  least  in  the 
incipient  stages,  is,  whether  the  pleasure  may  be  enjoyed  with 
impunity.  If  it  can,  it  will  be  enjoyed.  Of  course,  then,  in  view 
of  the  evils  to  the  community  of  "  dipsomania"  as  a  general  dis- 
ease, the  law  is  bound  to  step  in  and  attach  certain  penalties  to 
such  a  dangerous  habit.  It  says,  "  Drunkenness  we  make  a  police 
offence,"  and  "  for  crimes  committed  under  excitement  or  drunken- 
ness, we  hold  drunkenness  to  be  no  defence."  It  cannot  say  this, 
however,  with  effect,  unless  it  makes  good  what  it  says.  A  law 
which  is  not  executed  ceases  to  deter.  It  must  be  executed  if  it  is 
to  have  any  effect  on  the  will.  The  man  who  is  strongly  tempted 
to  indulge  a  passion  must  feel,  "  I  Avill  be  punished  if  I  do  this  ;" 
but  in  order  that  he  should  feel  this,  the  law  must  be  known  to 
perform  what  it  threatens.^ 

§  643.  "  Dipsomania"  is  here  viewed  not  only  singly,  but  as  a 
type  of  other  appetites  for  excessive  food,  drink,  and  stimulus. 
These  appetites  spring  from  the  animal  nature,  and,  if  they  are 
yielded  to  in  excess,  brutalize  him  who  yields  to  them,  making  them 
the  sources  of  great  domestic  and  sometimes  cruel  wrong.  From 
the  very  nature  of  such  indulgences,  they  are  to  be  controlled 
chiefly,  if  not  exclusively,  by  the  fear  of  results.     Hence  it  is  that 

•  See  an  article  giving  statistics  of  Action  and  Uses,  by  Dr.  Richardson, 
Influence  of  Alcohol  on   Insanity,    18     London,  1875. 

Journ.  Ment.  Sci.  443.     In  this  connec-         *  See   supra,   §§  115,   146,  162,   188, 
tion  may  be  referred  to   Alcohol,    Its     403.     See  an  article  in  3  Quart.  Journ. 

Inebriety,  202. 

526 


DIPSOMANIA. 


[§  643. 


to  such  men  the  greatest  mercy  is  that  the  law  should  be  firmly  ex- 
pressed. To  declare  them  emancipated  from  the  law  on  the  ground 
that  "  dipsomania"  is  a  moral  insanity,  is  cruel  to  them,  as  taking 
away  what  may  be  the  only  barrier  between  them  and  ruin.  And 
it  is  unphilosophical  on  the  grounds  already  stated.  The  mind  is  not 
divided  into  a  series  of  compartments,  one  of  which  can  be  insane 
and  the  others  sane.  When  there  is  an  insanity  of  the  part,  there 
is  insanity  of  the  whole.  When  there  is  no  insanity  of  the  whole, 
there  is  no  insanity  of  a  part.^ 


'  As  to  "dipsomania"  as  a  legal  de- 
fence, see  supra,  §§  190-199  ;  and  see, 
as  negativing  theory,  Choice  v.  State, 
31  Georg.  424. 

The  following  is  extracted  from  an 
article  by  Dr  T.  H.  Tanner,  in  the 
Dublin  Medical  Press  of  August  27, 
1862,  as  reprinted  in  the  American 
Journal  of  Insanity  for  October, 
1862  :— 

"  Within  the  last  few  years  the  word 
dipsomania  has  been  coined  to  express 
that  craving  for  intoxicating  liquors 
which,  according  to  some  physicians, 
partakes  of  the  character  of  insanity. 

"  Now,  although  a  fit  of  intoxication 
is  undoubtedly  an  attack  of  temporary 
mania,  yet  it  seems  to  me  a  highly  un- 
philosophical view  (and  one,  too,  which 
is  fraught  with  the  greatest  danger  to 
society)  to  regard  a  dipsomaniac  as  an 
irresponsible  being  ;  to  look  upon  him, 
in  fact,  as  an  individual  affected  by 
some  recognized  form  of  lunacy.  Hard 
drinking  is  a  degrading  vice,  and, 
like  many  other  vices,  the  more  freely 
it  is  indulged  in,  the  more  difficult  is 
its  discontinuance.  It  seems  absurd  to 
say  that  the  desire  for  alcoholic  stimu- 
lants is  a  disease — that  it  is  symptom- 
atic of  some  cerebral  condition,  unless, 
indeed,  we  say  the  same  of  every  act  of 
wickedness  or  folly.  Not  only  is  the 
experience  of  the  dead-house  against 
such  a  view,  but,  if  we  set  aside  this 
evidence  as   being  of  little   value,  we 


yet  know  that  there  is  no  difficulty  in 
curing  the  most  inveterate  sot,  provided 
that  we  are  but  able  to  deprive  him 
of  his  poison.  The  fact  is  indisputable, 
that  many  who  drink  to  excess  can 
be  persuaded  to  abs'ain  temporarily,  if 
only  a  limit  to  their  abstinence  be 
fixed,  so  that  they  may  enjoy  the  anti- 
cipation of  a  debauch  ;  while  a  few  can 
be  so  influenced  that  they  renounce 
this  habit  entirely. 

"The  drunkard  is  a  nuisance  to 
himself  and  all  who  are  brought  into 
contact  with  him ;  and  it  is  to  be  re 
gretted  that  there  are  no  legal  means 
of  controlling  him  until  he  is  cured  of 
his  folly. 

"  The  man  who  attempts  suicide  by 
some  summary  process  is  liable  to  im- 
prisonment ;  while  he  who  slowly 
poisons  himself  may  proceed  to  certain 
destruction  with  impunity.  He  may 
ruin  himself  and  his  family,  but  so 
that  he  breaks  only  moral  laws  and 
obligations  he  cannot  be  stopped  in  his 
downward  career.  The  welfare  of 
society  demands  some  place  of  deten- 
tion for  such  men  :  and,  even  if  an 
act  of  parliament  cannot  be  obtained 
to  sanction  the  necessary  interference 
with  the  liberty  of  these  misguided 
people,  yet  I  believe  that  there  are 
many  who  would  voluntarily  enter  and 
submit  to  the  rules  of  an  institution 
for  tlie  cure  of  drunkenness. 

"Mr.     Dickens    in    his     'American 

527 


§  646.]        MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

9.   Fanati co-mania. 
Qct)  Supernatural  or  pseudo-supernatural  demoniacal  possession. 

(a^)  §  644.  A  priori  improhalility  of  such.  p)ossession. — There  are 
periods  in  the  development  of  society  when  we  may  expect  super- 
natural communications.  When  a  new  economy  is  announced,  we 
may  look  to  see  it  authenticated  by  miracles.  When  that  economy 
is  inaugurated,  we  may  look  for  a  government  by  law. 

[§  645  omitted  in  this  edition  as  cumulative.^ 

[¥)  Solvahility  of  this  evidence  by  natural  tests. 

(a^)  §  646.  Disease. — The  brain,  independently  of  its  positive 
-J,  .  .  „  functions,  is  the  centre  of  nervous  sympathy,  and  "  is 
encedby  intimately  connected  with  many  other  viscera,  whose 
functions  cannot  be  carried  on  without  the  assistance 
derived  from  this  organ,  and  whose  infinitely  varied  disturbances 
are  all  propagated  by  a  reflex  action  to  this  common  centime." 
Among  the  organs  by  which  the  brain  is  thus  influenced,  the 
stomach  may  be  particularly  mentioned.  Observe,  as  an  illustra- 
tion of  this,  the  way  in  which  tea,  coff"ee,  alcohol,  and  opium  act 
on  the  brain.  Headaches,  hypochondriasis,  melancholy,  here  find 
their  origin.  Take  the  ordinary  case  of  hallucination,  in  which  a 
ghost  is  seen,  or  a  prophecy  heard.  Here  a  morbid  state  of  the 
stomach,  induced,  perhaps,  by  stimulants,  perhaps  by  indigestion, 
is  the  direct  cause  of  the  phantasm  of  cases  such  as  these.  Dr. 
Ferrier  thus  speaks  :  "  It  is  well  known  that  in  certain  diseases  of 
the  brain,  such  as  delirium  and  insanity,  spectral  illusions  take 
place  even  during  the  space  of  many  days.  But  it  has  not  been 
generally  observed  that  a  partial  affection  of  the  brain  may  exist, 
which  renders   the   patient  liable  to   such  imaginary  impressions, 

Notes'  mentions  the  case  of  a  mau  who  or  surveillance  ;    but  they  have   also 

got  himself  locked  up  in  the  Philadel-  said   that   without    restraint   all   else 

phia  prison,  so  that  he  might  rid  him-  would   be  useless,  for   they  could  not 

self  of  his  propensity  to  drink,  where  trust  themselves." 
he   remained   in   solitary  confinement         See  for  a  case  of  alleged  dipsomania, 

for  two  years,  though  he  had  the  power  17  Mouvement  M6dicale,  494.     See  an 

of  obtaining  his  liberty  at  any  moment  article  on   Oinomania  in  the  Alienist 

that  he  chose  to  ask  for  it.     Patients  and  Neurologist  for  October,  1881,  by 

have  more  than  once  told  me  that  they  T.  L.  Wright,  M.D.,  arguing  that  the 

would  gladly  submit  to  any  treatment  only  cure  for  dipsomania  is  prevention. 

528 


FANATICO-MANIA.  [§  647. 

either  of  sight  or  sound,  without  disordering  his  judgment  or 
memory.  From  this  peculiar  condition  of  the  sensorium,  I  conceive 
that  the  best-supported  stories  of  apparitions  may  be  completely 
accounted  for." 

"  When  the  brain  is  partially  irritated,  the  patient  fancies  that 
he  sees  spiders  crawling  over  his  bedclothes  or  person,  or  beholds 
them  covering  the  walls  of  his  room.  If  the  disease  increases,  he 
imagines  that  persons  who  are  dead  or  absent  flit  around  his  bed, 
that  animals  crowd  into  his  apartment,  and  that  all  of  these  appari- 
tions speak  to  him.  These  impressions  take  place  even  while  he  is 
convinced  of  their  fallacy.  All  this  occurs  sometimes  without  any 
degree  of  delirium." 

This  topic,  in  its  psychological  relations,  is  more  fully  considered 
under  other  heads. ^ 

(Jj^)  §  647.  Morbid  imitative  sympathy. — Emotions  which  would 
not   affect   us  when   alone    become  overpowering  when   Hysterical 

striking  us  in  connection  with  others.     Hysterical  symp-    emotions 
^,  ,  ,    .        /  "^     ^      often  be- 

toms,  when  not  promptly  repressed  m  times  of  general  come  epi- 
religious  excitement,  may  in  this  way  become  epidemic. 
Dr.  Davidson,  in  his  history  of  the  Presbyterian  Church  in  Ken- 
tucky, gives  us  instances  of  this.  Speaking  of  a  period  in  East 
Tennessee,  in  which  these  manifestations  were  very  injudiciously 
encouraged,  he  tells  us  that  "  the  subject  was  instantaneously  seized 
with  spasms  or  convulsions  in  every  muscle,  nerve,  and  tendon. 
His  head  was  jerked  or  thrown  from  side  to  side  with  such  rapidity 
that  it  was  impossible  to  distinguish  his  visage,  and  the  most  lively 
fears  were  entertained  lest  he  should  dislocate  his  neck,  or  dash  out 
his  brains.  His  body  partook  of  the  same  impulse,  and  was  hurried 
on  by  like  jerks  over  every  obstacle — fallen  trunks  of  trees,  or,  in 
a  church,  over  pews  and  benches,  apparently  to  the  most  imminent 
danger  of  being  bruised  and  mangled.  It  was  useless  to  attempt 
to  hold  or  restrain  him,  and  the  paroxysm  was  permitted  gradually 
to  exhaust  itself.  An  additional  motive  for  leaving  him  to  himself 
was  the  superstitious  notion  that  all  attempt  at  restraint  was  resist- 
ing the  Spirit  of  God."^ 

'  Supra,  §  529  ;  infra,  §§  723—743.  was  revealed  that  there  were  six  pro- 

2  An  "epidemic  of  witchcraft"  is  re-  fessional  'witch  masters'  in  the  county, 

ported  as  having  occurred  in   Butler,  and  that  when  the  devil  got  possession 

Pennsylvania,  in  1881,  "when  the  fact  of  a  man  and  was  not  disturbed  in  his 

VOL.  I.— 34  529 


§  648.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  648.  Most  of  the  supposed  cases  of  supernatural  possession  fall 
under  this  head.     Take,  in  addition  to  the  above,  the  following, 


tenaDcy  for  two  months,  five  dollars 
was  tlie  smallest  sum  for  which  he 
«ould  be  evicted.  The  modus  ope- 
randi is  to  cut  a  circle  on  a  white-oak 
tree  and  lure  the  devil  to  enter  it, 
which  he  does  with  a  noise  like  thun- 
der and  a  vehemence  that  splits  the 
tree  to  splinters.  The  patient  is  then 
corked  lap,  as  it  were,  with  prayers 
and  charms.  A  case  of  bigamy  at 
Eden,  New  York,  in  March  last,  showed 
that  an  old  man  named  Benedict  Smith 
had  convinced  a  woman  and  her  three 
daughters  that  they  were  possessed, 
and  that  he  alone  could  cure  them,  the 
cure  involving  their  marriage  to  him. 

"The  case  of  Catharine  Sylvia,  at 
New  Bedford,  iu  March,  1881,  proved  a 
humbug,  but  was  none  the  less  inter- 
esting because  of  the  enthusiasm  with 
which  the  people  accepted  the  theory 
that  the  girl  was  a  witch  ;  and  it  is 
only  a  little  while  since  the  Davenport, 
Iowa,  papers  chronicled  the  death  of 
Mary  the  Witch,  arid  gave  an  appe- 
tizing inventory  of  her  professional 
possessions,  her  '  cabinet'  containing  a 
cat's  skull,  a  chicken's  head,  bats' 
wings,  toads'  feet,  spiders'  webs,  va- 
rious bones  of  various  animals,  dried 
blood,  and  eyes  of  owls  and  cats  de- 
posited in  various  places  wrapped  in 
paper.  Leaving  out  of  the  question 
the  Voudoo  priestesses  and  the  spirit- 
ualist mediums,  it  is  safe  to  say  that 
the  professors  of  witchcraft  in  the 
United  States  are  numbered  by  hun- 
dreds, and  derive  an  annual  revenue 
from  the  credulous  which  would  take 
at  least  seven  figures  to  express. 

"  Though  witchcraft  is  not  so  public 
and  profitable  a  business  in  England, 
the  belief  in  witches  is  even  more  gene- 
rally held.  Within  the  last  few  weeks 
one  case  has  been  reported  where  the 

530 


parson  of  the  parish  was  appealed  to 
to  cut  a  sod  from  the  alleged  witch's 
grave  to  stop  her  nightly  promenades 
for  evil  purposes,  and  two  young  men 
were  brought  before  the  courts  for 
knocking  down  an  old  woman  and 
'  drawing  blood'  from  her  with  a  knife, 
so  as  to  release  their  sister  from  her 
spells.  At  Sheflleld,  in  November, 
1880,  Agnes  Johnstone  was  sent  to  jail 
for  three  weeks  for  obtaining  £5  8s. 
from  Margaret  Devaney,  through  a 
promise  of  '  ruling  her  planet '  and 
bringing  her  a  fortune  through  the 
agency  of  subterranean  spirits.  The 
witch  had,  her  dupe  testified,  danced 
with  the  fairies  and  worked  with  the 
devil  for  night  after  night. 

"  At  East  Dereham  one  William  Bul- 
wer  was  fined  for  abusing  and  assault- 
ing a  girl  named  Christiana  Martins 
because  she  was  a  partner  in  the  witch 
business  with  her  mother,  his  testimony 
being  as  follows:  'Mrs.  Martins  is  an 
old  witch,  and  she  charmed  me,  and  I 
got  no  sleep  for  her  for  three  nights, 
and  one  night  at  half-past  eleven 
o'clock  I  got  up  because  I  could  not 
sleep,  and  went  out  and  found  a  ' '  walk- 
ing toad' '  under  a  clod  that  had  been 
dug  up  with  a  three-pronged  fork. 
That  is  why  I  could  not  rest.  She  is  a 
bad  old  woman.  She  put  this  toad 
under  there  to  charm  me,  and  her 
daughter  is  just  as  bad,  gentlemen. 
She  would  bewitch  any  one.  She 
charmed  me,  and  I  got  no  rest  day  or 
night  till  I  found  this  '  walking  toad' 
under  the  turf.  I  got  the  toad  out  and 
put  it  under  a  cloth  and  took  it  uj) 
stairs  and  showed  it  to  my  mother,  and 
'  throwed'  it  into  the  pit  in  the  garden. 
I  can  bring  it  and  show  it  to  you,  gen- 
tlemen.' " — Philadelphia  Inquirer,  Feb. 
22,  1882. 


FANATICO-MANIA.  [§  649. 

which  occurred  in  Kentucky  in  the  movements  of  1810-  Most  cases 
15.  A  man  who  was  undoubtedly  deranged,  and  who  had  natural 
in  early  life  been  a  bold  and  enthusiastic  hunter  in  the  reaiTyhys- 
wilderness  of  which  Western  Kentucky  was  composed,  tericai. 
became  deeply  impressed  with  a  religious  enthusiasm  which  ex- 
hibited itself  in  the  same  way  that  all  his  other  impulses  exhibited 
themselves — through  the  mechanism  of  the  hunting  mania.  He 
became  a  sort  of  fanatical  Der  Freyschutz.  In  order  to  resist  the 
devil  and  make  him  flee,  he  contended  that  it  was  necessary  to  tree 
him,  and  to  give  him  chase,  just  as  we  would  a  wolf  whom  we  found 
prowling  among  our  sheep.  As  the  meetings  he  convoked  were 
held  in  a  grove,  one  of  the  congregation  would  suddenly  start  in 
pursuit  of  the  devil,  an  exercise  in  which  a  number  of  others  equally 
excitable  would  immediately  join.  This  was  called  the  "  running 
exercise,^''  and  became  the  first  stage  in  the  series  of  movements  by 
which  the  meetings  were  afterwards  made  memorable.  Climbing  a 
tree  after  the  devil  was  the  next  movement,  which  was  called  the 
"  climbing  exercise.''''  In  the  ecstasy  of  the  moment,  one  indi- 
vidual was  seized  with  a  propensity  to  bark,  a  movement  to  which 
the  rest  were  irresistibly  impelled,  though  they  used  every  effort  to 
check  the  propensity.  This  exercise,  which  was  called  "  treeing 
the  devil ^''  was  accompanied  Avith  such  a  scene  of  barking  and 
jumping  as  to  destroy  any  remaining  appearance  of  reason.  The 
epidemic  spread  to  other  fields  than  that  of  demon-hunting.  On 
one  occasion  one  individual  Avas  seized  with  an  insane  propensity  to 
play  marbles  during  divine  service,  when  others  involuntarily  joined 
him.  And  so  far  did  the  mania  extend,  that  a  series  of  other 
juvenile  games  were  introduced  and  followed  with  the  same  irre- 
sistible vehemence  by  the  congregation.  Absurd  as  this  may  appear, 
the  epidemic  lasted  for  some  months,  and  its  history  has  now  passed 
into  the  records  of  our  western  states  as  part  of  the  materials  on 
which  the  annals  of  western  immigration  will  rest. 

§  649.  In  connection  with  this,  may  be  noticed  the  recognized 
effect  of  a  mania  of  the  imitative  powers,  as  exhibited    ^ 

'■  .  Instances 

in  the   tarantula  of  Apulia,  and   the   exercises  of  the    of  morbid 

Jumpers  of  Cornwall  and  the  convulsionnaires  of  the    ^^ 

Parisian  miracles. 

"  In  1556,"  says  Dr.  Kellogg,  "  a  nuniber  of  children,  brought 

up  in  the  city  of  Amsterdam — girls  as  well  as  boys — to  the  number 

531 


§  649.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

of  sixty  or  seventy,  were  attacked  with  an  extraordinary  disease. 
They  climbed  like  cats  on  the  Avails  and  roofs.  Their  aspect  was 
alarming,  they  spoke  foreign  languages,  said  wonderful  things,  and 
even  gave  an  account  of  all  that  was  passing  in  the  municipal 
council.  They  ran  in  groups  of  ten  or  twelve  through  the  public 
squares,  went  to  the  rector,  and  reproached  him  with  his  most  secret 
actions.  It  is  also  asserted  that  they  discovered  several  plots 
against  the  Protestants ;  and  the  faculty  of  prophesying,  foretel- 
ling the  future,  and  speaking  in  foreign  languages,  appeared  really 
to  exist  in  this  epidemic." 

"  With  our  present  amount  of  knowledge,"  says  Dr.  Winslow, 
speaking  of  imitative  or  epidemic  suicide,  "  of  the  subtle  principle 
of  contagion,  it  is  difficult  to  say  whether  an  effluvium  may  not  be 
generated  in  such  cases,  which,  under  certain  conditions  of  the  sys- 
tem, may  communicate  disease.  We  cannot  possibly  say  that  such 
is  not  the  case,"  he  adds,  "  though  we  are  by  no  means  willing  to 
admit  that  the  disposition  to  suicide  may  be  propagated  by  conta- 
gion— using  the  term  in  its  usual  acceptation." 

"  A  man  once  hung  himself,  on  one  of  the  doors  of  the  corridor 
at  the  Hdtel  des  Invalides.  For  two  years  previous  no  suicide  had 
occurred,  but  in  the  succeeding  fortnight  five  invalids  hung  them- 
selves on  the  same  cross-bar,  and  the  passage  had  to  be  closed.  In 
one  of  the  Berlin  hospitals,  some  fifty  years  since,  a  young  woman 
of  robust  frame  visited  one  of  the  patients.  On  entering  the  ward, 
she  fell  down  in  strong  convulsions.  Six  female  patients  who  saw 
her  became  at  once  convulsed  in  the  same  way,  and,  by  degrees, 
eight  others  passed  into  the  same  condition  for  four  months,  during 
which  time  four  nurses  followed  their  example.  They  were  all  be- 
tween sixteen  and  twenty-five  years  of  age.  Some  years  since,  in 
one  of  our  popular  boarding-schools  for  young  ladies,  a  pupil  be- 
came affected  by  chorea.  Her  contortions  being  perceived  by  the 
school,  this  case  was  soon  followed  by  another,  and  still  another, 
until  the  disease  became  regularly  epidemic.  A  judicious  physi- 
cian being  called  in  proposed  that  cauterization  by  a  red-hot  iron 
should  be  applied  to  the  next  case  which  occurred  ;  this  prescription 
became  generally  known  through  the  school ;  no  more  cases  oc- 
curred. In  the  olden  time,  the  ladies  of  Miletus,  in  a  fit  of  melan- 
choly for  the  absence  of  their  husbands  and  lovers,  resolved  to  hang 
themselves,  and,  as  in  all  fashionable  amusements,  vied  with  each 
532 


FANATICO-MANIA.  [§  651. 

other  in  the  alacrity  with  which  they  carried  on  their  work  of  self- 
destruction.  Sydenham  informs  us  that  at  Mansfield,  in  the  month 
of  June,  suicide  prevailed  to  an  alarming  degree,  from  causes 
wholly  unknown.  The  same  thing  happened  at  Rouen  in  1806,  at 
Stuttgart  in  1811,  and  at  a  village  of  St.  Pierre  Montjean  in  the 
year  1813.  One  of  the  most  marked  suicidal  epidemics  was  that 
which  prevailed  at  Versailles  in  the  year  1793  :  in  one  year  the 
number  of  suicides  was  thirteen  hundred  —  a  number  entirely  out 
of  proportion  to  the  population." 

§  650.  A  suicidal  epidemic  prevailed  at  the  New  York  State 
Lunatic  Asylum  in  July,  1851,  and  is  alluded  to  by  Dr.  Benedict 
in  his  report  for  that  year.  "  Out  of  four  hundred  and  sixteen 
patients,  at  that  time  in  the  institution,  the  suicidal  propensity  ex- 
isted in  sixty-six.  The  first  successful  attempt  was  made  on  the 
12th  of  July,  by  a  female  of  the  most  intelligent  class.  Her 
melancholy  end  became  known  to  her  companions,  with  whom  she 
was  a  favorite,  and  on  the  following  day  two  others  in  the  same 
hall  Avere  overheard  devising  a  plan  for  their  own  death.  The 
large  number  of  forty-four  patients  were  admitted  during  the  month 
of  July,  nineteen  of  whom  were  suicidal.  Two  patients,  who  had 
long  been  in  the  house,  and  never  manifested  suicidal  propensities, 
attempted  it  during  this  month,  though  they  had  no  knowledge  of 
what  had  occurred  in  another  part  of  the  huilding y^ 

(c^)  §  651.  Legerdemain  and  fraud. — Dr.  Monsey,  who  was  the 
medical  adviser  of  Garrick,  was  called  upon  to  pay  a 
professional  visit  to  that  great  actor.      "  Garrick,"  as    inexpika-"^ 
his  biographer,  Taylor,  tells  us,  "was  announced  for   ^i^occur- 
King  Lear  on  that  night,  and  Avhen  Monsey  saw  him  in   often  mere 

111  11-  •  1        1      1  1  •       -f    1         1  deception. 

bed  he  expressed  his  surprise,  and  asked  him  it  the  play 
was  to  be  changed.  Garrick  was  dressed,  but  had  his  nightcap 
on,  and  the  quilt  was  drawn  over  him  to  give  him  the  appearance 
of  being  too  ill  to  rise.  Dr.  M.  expressed  his  surprise,  as  it  Avas 
time  for  Garrick  to  be  at  the  theatre  to  dress  for  King  Lear. 
Garrick,  in  a  languid  and  whining  tone,  told  him  that  he  was  too 
much  indisposed  to  perform  himself,  but  that  there  was  an  actor 
named  Marr,  so  like  him  in  figure,  face,  and  voice,  and  so  admir- 
able a  mimic,  that  he  had  ventured  to  trust  the  part  to  him,  and 

'  Kellogg  on  Reciprocal  Influence  of  Mind  and  Body. 

533 


§  652.1      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

was  sure  that  the  audience  ■would  not  perceive  the  difference. 
Pretending  that  he  began  to  feel  worse,  he  requested  Monsey  to 
leave  the  room  in  order  that  he  might  get  a  little  sleep,  but  desired 
him  to  attend  the  theatre,  and  let  him  know  the  result.  As  soon 
as  the  doctor  quitted  the  room,  Garrick  jumped  out  of  bed,  and 
hastened  to  the  theatre.  Monsey  attended  the  performance.  Hav- 
ing left  Garrick  in  bed,  he  was  bewildered  by  the  scene  before 
him,  sometimes  doubting,  and  sometimes  being  astonished  at  the 
resemblance  between  Garrick  and  Marr.  At  length,  finding  that 
the  audience  were  convinced  of  Garrick's  identity,  Monsey  began 
to  suspect  a  trick  had  been  practised  upon  him,  and  instantly  hur- 
ried to  Garrick's  house  at  the  end  of  the  play  ;  but  Garrick  was 
too  quick  for  him,  and  was  found  by  Monsey  in  the  same  state  of 
illness." 

§  652.    A  writer  in  the  London  Christian  Observer,  for  1812, 

tells  us  that  in  the  middle  of  the  last  century  a  small 

Do«ed^sif'      ^^^  ^^  convivial  personages  was  assembled  at  supper  in 

pernatu-       Manchester.     A  chair  at  the  bottom  of  the  table  was 

ralism. 

left  empty  by  the  absence  of  a  member  who  was  known 
to  be  at  the  time  confined  upon  a  dying  bed.  The  waiters  had 
quitted  the  room,  and  the  members  were  speaking  of  their  dying 
friend,  when  on  a  sudden  the  door  opened,  and  his  apparition,  as 
was  supposed,  entered,  shrouded  in  white,  and  pale  and  ghastly  as 
an  inhabitant  of  the  tomb.  It  stalked  to  the  unoccupied  chair,  sat 
down,  looked  around  upon  the  company,  rose  again,  and  with  slow 
and  solemn  step  quitted  the  room.  Overcome  with  awe,  ill-prepared 
by  their  habits  of  life  to  resist  the  terrors  of  superstition,  no  one 
followed  him.  When  all  was  over,  however,  they  sent  to  the  house 
of  the  sick  man,  and  learned  from  the  nurse  that  he  had  died  a  few 
minutes  before  they  had  seen  his  apparition.  Could  a  ghost-story 
be  more  strongly  authenticated  ?  and  could  it  be  wondered  at  that 
the  club  should  be  dissolved,  and  that  each  member  should  thence- 
forward remain  a  firm  believer  in  spectral  appearances  ?  Thus 
matters  continued  for  nearly  ten  years,  when  the  nurse,  on  her 
dying  bed,  confessed  to  the  clergyman  of  the  parish  that  her  fear 
of  discredit  for  an  act  of  negligence  had  led  to  this  misapprehension 
of  the  facts  of  the  case.  She  confessed  that,  while  the  dying  man 
was  in  a  paroxysm  of  fever,  she  had  quitted  his  chamber ;  that  on 
her  return,  a  few  minutes  after,  she  found  that,  with  the  strength 
534 


FANATICO-MANIA.  [§  652. 

not  unusually  attendant  upon  the  last  moments  of  life,  he  had  fled, 
but  that  after  a  few  minutes  he  returned  with  his  sheet  wrapped 
around  him,  lay  down  in  his  bed  and  died.  The  fact  seems  to  have 
been  that,  by  force  of  custom,  he  had  thought  of  his  club  at  the 
appointed  day  and  hour,  had  crossed  the  street  to  the  club-door, 
which  joined  the  street,  and  thus  terrified  the  society. 

So  also  the  following,  given  in  the  same  journal.  It  was  the  ob- 
ject, some  fifty  odd  years  ago,  of  a  certain  party  in  the  kingdom  of 
Prussia  to  separate  the  successor  of  Frederick  the  Great  of  Prussia 
from  the  interests  of  that  w^ary  and  ambitious  prince.  Weary  of 
the  wars  in  which  he  engaged  the  country,  these  persons  were  de- 
sirous of  robbing  him  not  merely  of  his  throne,  but  of  his  life.  It 
chanced,  however,  that  the  young  prince  was  not  to  be  seduced,  ex- 
cept by  a  peculiar  process,  to  any  such  nefarious  attempt.  He  was 
neither  ambitious  nor  sanguinary  ;  and,  unless  when  stimulated  by 
peculiar  feelings,  was  of  a  cold  and  phlegmatic  temperament.  When 
once,  however,  those  feelings  were  aroused,  his  ardor  became  very 
great.  He  was  superstitious,  credulous,  and  sensual.  On  these 
yielding  points  of  his  nature,  then,  the  conspirators  resolved  to 
practise.  Accordingly,  jugglers  of  all  sorts  were  set  to  work,  and 
among  others  an  infamous  fellow  of  the  name  of  Gustfragog.  The 
"  Ghost  Seer"  of  Schiller  gives  an  accurate  picture  of  one  of  the 
scenes  exhibited  to  the  prince,  and  by  which  even  a  firmer  mind 
than  his  might  have  been  deeply  affected.  It  is  unnecessary  to 
state  the  political  result  of  the  plan.  It  is  more  to  our  present  pur- 
pose to  add,  that  its  partial  social  success  assisted  to  diffuse  a  taste 
for  necromancy  over  the  nation.  "  Tricks,"  is  the  summary  of  this 
by  the  writer  in  the  Christian  Observer,  "  were  devised  and  exe- 
cuted, which  serve  to  illustrate  and  confirm  the  opinion,  that  in  all 
ages  much  of  what  has  been  referred  to  spectral  appearances  has 
far  more  connection  with  the  living  than  the  dead.  Gustfragog,  in 
the  presence  of  the  narrator  above  mentioned,  produced  the  shades 
of  the  dead,  invisible  music,  called  out  voices  from  the  dead 
walls,  in  short,  made  matter  loquacious,  music  philosophical,  at  his 
pleasure." 

A  case  of  this  class  was  told  by  the  late  Washington  Allston.  A 
student  at  Cambridge  dressed  himself  up  in  white  as  a  ghost  to 
frighten  his  companion,  having  first  drawn  the  bullets  from  pistols 
which  he  kept  at  the  head  of  his  bed.     As  the  apparition  glided  by 

535 


§  654.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

his  bed,  the  youth  laughed  and  cried  out,  "  Vanish,  I  fear  you  not." 
The  ghost  did  not  obey  him,  and  at  length  he  reached  a  pistol  and 
fired  it,  when,  seeing  the  ghost  immovable,  and  invulnerable  as  he 
supposed,  a  belief  in  a  spirit  instantly  came  over  his  mind,  and, 
convulsions  succeeding,  his  extreme  terror  was  soon  followed  by 
death. 

§  653.  Predictions,  accompanied  by  ghostly  horrors  such  as  this, 
often  bring  about  their  own  fulfilment.  Dr.  Rush  told  a  story  of  a 
farmer,  near  Philadelphia,  who  took  the  yellow  fever  upon  hearing 
from  a  party  of  medical  students,  who  wanted  to  play  a  practical 
joke  upon  him,  that  he  displayed  the  premonitory  symptoms  of  that 
disease.  Suppose  the  communication  had  been  made  to  him  under 
the  mask  of  a  simulated  apparition,  and  suppose  the  imposition  had 
remained  undetected,  would  we  not  have  had  a  ghost  story  equal  in 
authentication  to  the  strongest  which  modern  supernataralism  can 
present  ? 

(d^)  §  654.    3IistaJce  of  semises. — Mr.  Dendy,  in  his  Philosophy 
of  Mystery,  tells  us  that  a  few  days  after  the  death  of 
apparitions    Marshal  Ney,  a  servant,  ushering  the  Mareschal  Aine 
mJ^teke  o?   ^"^^  ^  Parisian  soiree,  announced  by  mistake  Mons.  Le 
senses.  Mareschal  Ney.    Instantaneously,  says  the  narrator,  the 

form  of  the  Prince  of  Moskeva  was  before  his  eye. 

Now  here  was  an  apparition  produced  by  mental  association. 
No  one  accustomed  to  the  examination  of  testimony  in  courts  of 
justice,  but  will  recollect  many  similar  cases. 

Visual  mistakes  find  their  place  here.  Thus  Lord  Nelson's 
sailors  conjured  up  the  bloated  corpse  of  the  murdered  Prince  Car- 
accioli,  as  it  floated  erect  towards  their  ship,  as  a  ghost  fraught  with 
supernatural  Avarning. 

A  lady  was  some  years  back  attending  a  sick  husband  in  a  little 
town  on  the  Hudson  River.  The  windows  of  the  room  they  occu- 
pied looked  directly  down  on  the  graveyard.  Towards  midnight, 
on  Saturday,  the  disease  of  the  sick  man  approached  a  crisis,  and 
his  wife  was  earnestly  praying  for  his  recovery.  Suddenly  she  saw 
in  the  graveyard  a  spectral  figure  in  white  robes,  apparently  waving 
its  arms  to  her  as  if  with  a  gesture  of  assent.  She  called  to  it  the 
attention  of  the  nitse,  who  fainted.  It  seemed  as  if  the  sick  man 
at  once  began  to  recover,  but  the  wife  was  too  much  overawed  to  be 
willing  to  remain  in  a  neighborhood  open  to  such  apparitions.  She 
536 


FANATICO-MANIA.  [§  655. 

was  about  to  remove,  when  the  difficulty  was  solved  by  the  follow- 
ing account  given  to  her  by  her  washerwoman :  "  I  am  obliged 
to  move  also,  for  I  have  no  place  to  dry  my  clothes.  Last  week 
we  were  forced  to  hang  them  in  the  churchyard,  and  then  I  forgot 
them,  and  had  to  run  in  towards  midnight  to  catch  them  up  in  my 
arms,  so  as  to  keep  them  from  being  seen  on  Sunday  morning." 

Mr.  Dendy  tells  us  of  a  farmer  of  Teviotdale,  who  in  the  gloom 
of  evening  saw  on  the  wall  of  a  cemetery  a  pale  form  throwing 
about  her  arms  and  moving  and  chattering  to  the  moon.  With  not 
a  little  terror,  he  spurred  his  horse,  but  as  he  passed  the  phantom 
it  dropped  from  its  perch,  and,  fixing  itself  on  the  croup,  clasped 
him  tightly  round  the  waist.  He  arrived  at  home,  with  a  thrill  of 
horror  exclaimed,  "  Tak  aff  the  ghaist !"  and  was  carried  shivering 
to  bed.  And  what  was  the  phantom?  A  maniac  widow  on  her 
distracted  pilgrimage  to  the  grave  of  her  husband,  for  whom  she 
had  mistaken  the  ill-fated  farmer. 

The  supernatural  scenery  which  once  surrounded  Lake  Superior 
may  fall  under  this  head.  Spectre  ships,  propelled  by  giant 
sailors,  were  seen  on  its  shores.  Bluffs,  almost  mountain  high, 
lifted  their  brows  covered  with  trees  of  mammoth  height.  But  the 
ships  were  Indian  canoes,  and  the  bluffs  low  ridges  of  sand  covered 
with  scrubby  pines.  The  exaggerated  size  was  produced  by  a 
peculiar  refractive  power  of  the  atmosphere. 

§  655.  Observe,  also,  the  solution  of  the  Giant  of  the  Brocken, 
as  given  by  M.  Haue.  Or  optical 

"  After  having  been  here  for  the  thirtieth  time,  and,  <ieiusions. 
besides  other  objects  of  my  attention,  having  procured  information 
respecting  the  above-mentioned  atmospheric  phenomenon,  I  was  at 
length  so  fortunate  as  to  have  the  pleasure  of  seeing  it ;  and  per- 
haps my  description  may  afford  satisfaction  to  others  who  visit 
Brocken  through  curiosity.  The  sun  rose  about  four  o'clock,  and, 
the  atmosphere  being  quite  serene  towards  the  east,  his  rays  could 
pass  without  any  obstruction  over  the  Heinrichshohe.  In  the 
southwest,  however,  towards  the  Achtermannshohe,  a  brisk  west 
wind  carried  before  it  their  transparent  vapors,  which  were  not  yet 
condensed  into  thick,  heavy  clouds.  About  a  quarter  past  four  I 
went  towards  the  inn,  and  looked  around  to  see  if  the  atmosphere 
would  permit  me  to  have  a  free  prospect  to  the  southwest ;  when  I 
observed,  at  a  very  great  distance  towards  the  Achtermannshohe, 

537 


§  655.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

a  human  figure  of  a  monstrous  size.  A  violent  gust  of  wind  having 
almost  carried  away  my  hat,  I  clapped  my  hand  to  it  hy  moving 
my  arm  towards  my  head,  and  the  colossal  figure  did  the  same. 
The  pleasure  I  felt  on  this  discovery  can  hardly  be  described  ;  for 
I  had  already  walked  many  a  weary  step  in  the  hope  of  seeing  this 
shadowy  image,  without  being  able  to  satisfy  my  curiosity.  I  im- 
mediately made  another  movement  by  bending  my  body,  and  the 
colossal  figure  before  me  repeated  it.  I  was  desirous  of  doing  the 
same  thing  once  more,  but  my  colossus  had  vanished.  I  remained 
in  the  same  position,  waiting  to  see  whether  it  would  return,  and  in 
a  few  minutes  it  again  made  its  appearance  in  the  Achtermannshohe. 
I  paid  my  respects  to  it  a  second  time,  and  it  did  the  same  to  me. 
I  then  called  the  landlord  of  the  Brocken  ;  and,  having  both  taken 
the  same  position  which  I  had  taken  alone,  we  looked  towards  the 
Achtermannshohe,  but  saw  nothing.  We  had  not,  however,  stood 
long  Avhen  two  such  colossal  figures  were  formed  over  the  above 
eminence,  which  repeated  our  compliments  by  bending  their  bodies 
as  Ave  did  ;  after  which  they  vanished.  We  retained  our  position, 
kept  our  eyes  fixed  upon  the  same  spot,  and  in  a  little  while  the 
two  figures  again  stood  before  us.  Every  movement  that  we  made 
by  bending  our  bodies  these  figures  imitated,  but  with  this  differ- 
ence, that  the  phenomenon  was  sometimes  weak  and  faint,  some- 
times strong  and  well  defined.  Having  thus  had  an  opportunity  of 
discovering  the  whole  secret  of  this  phenomenon,  I  can  give  the 
followincr  information  to  such  of  mv  readers  as  may  be  desirous  of 
seeing  it  themselves.  When  the  rising  sun  throws  his  rays  over 
the  Brocken  upon  the  body  of  a  man  standing  opposite  to  fine  light 
clouds  floating  around  or  hovering  past  him,  he  needs  only  fix  his 
eye  steadfastly  upon  them,  and  in  all  probabiUty  he  will  see  the 
singular  spectacle  of  his  own  shadow  extending  to  the  length  of  five 
or  six  hundred  feet,  at  the  distance  of  about  two  miles  from  him. 
This  is  one  of  the  most  agreeable  phenomena  I  ever  had  an  oppor- 
tunity of  remarking  on  the  great  uplands  of  Germany." 

A  throng  of  persons  collecting  at  a  given  spot,  and  gazing  in 
tently  at  any  specific  object,  will  readily  be  aflected  by  a  delusion 
concerning  it.  Mr.  Dendy  tells  us  that  some  time  since  a  very 
large  assemblage  was  watching  with  intense  interest  the  stone  lion 
of  the  Percies  at  Northumberland  House.  They  were  unanimous 
in  the  conviction  that  he  was  swinging  his  tail  to  and  fro — a  false 
538 


FANATICO-MANIA.  [§  656. 

impression,  of  course,  which  liad  gradually  accumulated  from  this 
solitary  exclamation  of  a  passenger :  "  By  heaven,  he  wags  his 
tail !"  Of  this  sort  of  illusion  we  are  given  the  following  addi- 
tional instance :  Beneath  the  western  portico  of  St.  Paul's  a  crowd 
^f  gazers  were  some  time  since  bending  their  eyes  on  the  image  of 
a  saint,  who  was  nodding  at  them  with  a  very  gracious  affability. 
Curiosity  had  risen  to  the  pitch  of  wonder  at  a  miracle,  when  sud- 
denly a  sparrow-hawk  flew  from  the  ringlets  of  the  saint,  and  the 
illusion  vanished. 

(fe2)  §  656.  Cfuessufork. — First,  as  to  dreams.  Now,  in  the 
millions  of  dreams  that  each  night  brings  to  pass,  it  is  Knowiod^e 
much  more  likely  that  some  should  come  true  than  that   attributed 

•^  _  to  dreams 

none  should.      But  there  are  independent  circumstances   probably 

.f.  T     •  procured 

tending  to  verity  such  predictions.'  from  other 

"  If  you  do  so  and  so,  you  will  rue  it."  So  speaks  ®*^'^'^^*^^- 
superior  sagacity  or  superior  caution ;  but  does  the  fulfilment  prove 
the  foreknowledge  ?  Columbus  predicted  to  the  Indians  an  eclipse. 
In  this  case  the  prediction  was  the  result  of  a  higher  degree  of 
knowledge  on  his  part.  An  Earl  of  Caithness,  we  are  told,  was 
desirous  of  ascertaining  the  distance  of  a  vessel  laden  with  wine  for 
his  cellars.  He  went  to  a  seer,  and  received  the  answer,  "  At  the 
distance  of  four  hours'  sail."  The  prophet,  to  prove  the  truth  of 
his  statement,  laid  before  the  earl  the  cap  of  a  seaman  in  the 
ship.  Soon  the  ship  turned  the  point,  and  a  seaman  claimed  the 
cap,  saying  that  shortly  before  it  had  been  blown  from  his  head  in 
a  gale. 

Sometimes,  however,  the  prediction  is  one  of  a  series  of  mere 
fishing  adventures.  It  is  a  conjecture,  more  or  less  sagacious,  of 
one  of  a  number  of  probabilities.  So  it  was  when  Napoleon,  when 
marching  to  Acre,  had  a  Nile  boat  named  Ultalie  destroyed. 
"Italy  is  lost  to  France,"  he  declared ;  and  the  remark,  when  the 
result  was  found  to  have  taken  place,  was  treasured  up,  though  it 
turned  out  to  be  only  parenthetically  true.  So  it  was  with  the 
warning  given  by  Lord  Falkland  and  Archbishop  Williams  of  the 
fate  of  Charles  I.  So  it  was  with  the  famous  prophesies  of 
Cazotte,   of   the    decapitation    of   himself    and   his   friends.      In 

'  See  La  Sommeil  et  les  R6ves,  Alfred  Maury.     Paris,  1865. 

539 


§  657.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

each  case  the  prophecy  was  a  conjecture,  and  the  event  at  the  time 
probable. 

Then  come  the  mere  dodging  oracles,  which  are  framed  so  as  to 
read  both  ways. 

"  The  power  is  here  which  Csesar  will  overcome,"  leaving  the 
question,  whether  it  is  C?esar  or  the  power  which  is  to  be  trium- 
phant, to  be  determined  by  the  result. 

Then  take  the  following,  given  Pyrrhus  on  his  way  to  attack 
Rome : — 

"Aio  te  ^acida  Romanes  te  vincere  posse,"  meaning  either  that 
Rome  was  to  conquer  him,  or  he  conquer  Rome. 

Alexander  the  Great,  in  the  first  gush  of  his  youthful  vigor, 
visited  the  Delphic  pythoness  in  order  to  obtain  a  favorable  omen 
for  his  eastern  campaign.  The  priestess  shrank  from  an  interview 
with  a  prince  at  once  so  capricious  and  so  powerful.  Alexander, 
however,  would  take  no  refusal,  and,  seizing  her,  forced  her  down 
upon  the  tripod  from  which  her  prophetic  strains  usually  emanated. 
An  operation  like  this,  when  we  keep  in  mind  the  age  of  the  pro- 
phetess, and  the  sharp,  jutting  points  of  the  tripod  on  which  she 
was  thus  trussed,  could  not  have  been  agreeable  to  her ;  nor  can 
we  be  surprised  that  she  cried  out  testily,  "  0  son !  who  can 
withstand  thee  ?"  Alexander  inquired  no  further,  for  this  pettish 
cry  was  seized  by  him  as  a  divine  announcement  of  his  future  in- 
vincibility. 

§  657.  To  this  may  be  added  those  instances  in  which  an  ap- 
parently supernatural  presentiment  is  produced  by  the 
raipresen-  resuscitation  of  a  dead  recollection.  Let  us  take  the 
often'an  following  from  Moreton's  Essay  on  Apparitions  :  "  The 
awakening    Reverend  Dr.  Scott,  of  Broad  Street,  was  sitting  alone 

of  memory.  r-  i  i 

in  his  study.  On  a  sudden,  the  phantom  of  an  old 
gentleman,  dressed  in  a  black  velvet  gown  and  full-bottom  wig, 
entered  and  sat  himself  down  in  a  chair  opposite  to  the  doctor. 
The  visitor  informed  him  of  a  dilemma  in  which  his  grandson,  who 
lived  in  the  west  country,  was  placed  by  the  suit  of  his  nephew  for 
the  recovery  of  an  estate.  This  suit  would  be  successful,  unless  a 
deed  of  conveyance  was  found  which  had  been  hidden  in  an  old 
chest  in  the  loft  of  the  house.  On  his  arrival  at  this  house,  he 
learned  that  his  grandson  had  dreamed  of  this  visit,  and  that 
his  grandfather  was  coming  to  aid  him  in  the  search.  The  deed 
540 


FANATICO  MANIA.  [§  658. 

was  found  in  the  false  bottom  of  the  old  chest,  as  the  vision  had 
promised." 

Now,  the  solution  no  doubt  is,  that  the  dreamer  heard  of  the 
place  of  deposit  when  a  boy,  and  the  circumstance  was  recalled  to 
him  by  the  fact  of  the  pending  trial. 

The  same  explanation  applies  to  the  following  cases :  — 

After  the  death  of  Dante,  as  we  are  told  by  the  same  author,  it 
was  discovered  that  the  thirteenth  canto  of  the  Paradise  was 
missing.  Great  search  was  made  for  it,  but  in  vain  ;  and  to  the 
regret  of  every  body  concerned,  it  was  at  length  concluded  that  it 
had  either  never  been  written,  or  had  been  destroyed.  The  quest 
was  therefore  given  up,  and  some  months  had  elapsed,  when  Pietro 
Allighieri,  his  son,  dreamed  that  his  father  had  appeared  to  him 
and  told  him,  that,  if  he  removed  a  certain  panel  near  the  window 
of  the  room  in  which  he  had  been  accustomed  to  write,  the  thir- 
teenth canto  would  be  found.  Pietro  told  his  dream,  and  was 
laughed  at,  of  course.  However,  as  the  canto  did  not  turn  up,  it 
was  thought  as  well  to  examine  the  spot  indicated  in  the  dream. 
The  panel  was  removed,  and  there  lay  the  missing  canto  behind  it, 
much  mildewed,  but  fortunately  still  legible. 

A  gentleman  in  this  country  received  a  promissory  note  to  a 
large  amount,  which  he  placed  in  a  book.  After  the  note  became 
due,  he  was  unable  to  recollect  where  he  had  placed  it,  and  the 
debt  was  in  danger  of  being  lost,  and  his  cliaracter  seriously 
injured,  as  one  who  was  ready  to  press  a  claim  for  which  he  had 
no  evidence.  The  fact  caused  him  great  anxiety,  but  his  efforts  to 
recollect  the  place  of  deposit  were  fruitless.  Some  time  afterwards 
he  was  almost  droAvned,  and  became  apparently  insensible.  When 
in  this  state,  all  the  circumstances  of  the  deposit  flashed  upon  his 
mind,  and  the  spot  where  he  had  placed  the  note  was  recalled. 
When  he  was  able  to  speak,  he  sent  for  the  book,  and  there  the 
note  was  found. 

§  658.    Sir  Evan  Nepean,  being  at  the  time  secretary  of  the 

admiralty,  found  himself  one  nio;ht  unable  to  sleep,  and 

•"  .  '='   .  ^'   .  Memory 

was  urged  by  an  indefinable  feeling  that  he  must  rise,    iudepen- 
though  it  was  then  only  two  o'clock.    He  accordingly  did    poreai  con- 
so,  and  went  into  the  park,  and  from  that  to  the  Home    '^itions. 
Office,  Avhich  he  entered  by  a  private  door,  of  which  he  had  the 
key.      He  had  no  object  in  doing  this  ;   and,  to  pass  the  time,  he 

541 


§  659.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY 

took  up  a  newspaper  that  was  lying  on  the  table,  and  there  read  a 
paragraph  to  the  effect  that  a  reprieve  had  been  dispatched  to 
York  for  certain  men  condemned  for  coining.  The  question  oc- 
curred to  him,  was  it  indeed  dispatched  ?  He  examined  the  books, 
and  found  it  Avas  not;  and  it  was  only  by  the  most  energetic  pro- 
ceedings that  the  order  was  forwarded  and  reached  York  in  time  to 
save  the  men. 

Mrs.  Crowe,  in  her  "  Night  Side  of  Nature,"  tells  us  of  a  case 
that  occurred  not  many  years  since,  where,  a  murder  having  been 
committed,  a  man  came  forward,  saying  that  he  had  dreamed  that 
the  pack  of  the  murdered  peddler  was  hidden  in  a  certain  spot, 
where,  on  a  search  being  made,  it  was  actually  found.  The  police 
at  first  concluded  that  he  was  himself  the  assassin,  but  the  real 
criminal  was  afterwards  discovered  ;  and^  it  being  asserted  that  the 
two  men  had  passed  some  time  together  since  the  murder,  in  a 
state  of  intoxication,  the  conclusion  was  generally  reached  that  the 
crime  and  the  place  of  concealment  had  been  communicated  to  the 
pretended  dreamer  in  such  a  Avay,  in  consequence  of  his  then 
drunkenness,  as  to  leave  a  vague  impression  on  his  mind,  without 
enabling  him  to  understand  how  that  impression  came. 

Now,  here  we  have  in  each  case  a  solution  perfectly  in  accord- 
ance with  well-known  psychological  laws.  The  soul,  of  which 
memory  is  an  attribute,  is  independent  of  corporeal  conditions,  and 
is  unshackled  by  those  bonds  which  confine  even  the  will.  It  is  this, 
we  may  remark  incidentally,  which  invests  the  memory  with  such 
tremendous  future  retributive  powers. 

(y^)  §  659.  Natural  phenomena  at  present  inexplicable. — Under 
this  head  we  may  place  such  remarkable  occurrences  as 
"ecstasies"  the  "  ecstasies"  of  Louise  Lateau  and  of  Alexandrine 
netlcTh^"-  Lanoix,  as  reported  by  Dr.  Meredith  Clymer,  in  his 
nomena.  valuable  "  Notes  on  Ecstasy  and  other  Dramatic  Dis- 
orders of  the  Nervous  System."^ 

'  4  Journ.  Psyc.  Med.  659.  General   Pathology   and   Therapeutics 

"The  perusal  of  Dr.  Meredith  Cly-  in  the  Catholic  University  of  Louvain, 

mer's  interesting  paper,  '  On  the  Dra-  to  ask  for   further   and   later   details 

matic   Diseases   of  the   Nervous    Sys-  regarding  the  case  of  Louise  Lateau. 
teiu,' "  vrrites   George   E.  Day  in   the         "  In  reply  to  my  letter,  he  forwarded 

same  journal  for  1871,  p.  288,  led  "  me  me   a   complete   work,  which   he   has 

to   write    Dr.    Lefebvre,    Professor    of  recently   published,    entitled    '  Louise 

542 


FANATICO-MANIA.  [§  659. 

With  this  may  be  classed  the  so-called  "  Odyllic  Force  of  Mag- 
netism." It  is  true  that  some  of  these  phenomena  may  be  explained 
in  accordance  with  well-known  natural  analogies.  They  differ  in 
no  respect  from  a  series  of  other  phenomena  equally  inexplicable, 
but  for  which  it  has  never  been  thought  necessary  to  suppose  direct 
Satanic  or  spiritual  coercion.  The  strongest  Avay  of  stating  the 
magnetic  theory  is,  that  one  human  being  is  able,  under  certain 
circumstances,  to  so  impress  his  idiosyncrasies  upon  another  as  to 
produce  in  that  other  their  counterparts.  Suppose,  instead  of  this, 
it  should  be  stated  that  a  dog  is  able  to  so  act  upon  a  human  being 
as  after  a  certain  period  of  time  to  impress  Ms  idiosyncrasies  upon 
the  man,  to  cause  him  to  bark  like  a  dog,  to  believe  himself  a  dog, 
in  fact,  to  respond  to  the  dog's  nature.  Nothing  in  animal  magnet- 
ism is  stranger  than  this,  and  yet  this  horrible  and  mysterious  trans- 
formation we  witness  in  the  phenomenon  of  hydrophobia,  and  Avhat 
is  more,  we  rest  satisfied  with  the  fact  without  attempting  to  explain 
it  supernaturally,  though  the  process  by  which  this  extraordinary 
infusion  of  one  nature  into  another  is  effected  is  utterly  inexplicable. 
And  again,  we  see  that  the  sun,  itself  an  unintelligent  agent,  is  able 
so  to  act  upon  a  silver  plate  as  to  stamp  in  a  flash  the  portrait  of  an 
immediate  object — say  a  human  face — upon  the  inanimate  metal. 
Is  this  more  strange  than  that  the  passionate  and  flexible  spirit  of 
man,  impregnated  as  it  is  with  so  many  wonderful  energies  which  we 
have  never  been  able  to  test,  should  project  on  the  soul  of  its  fellow 
at  least  some  sort  of  portrait  of  itself?  Do  we  not  see  this  con- 
stantly in  social  life,  at  least  to  some  modified  extent  ?     Have  we 

Lateau   de  Bois  d'Hiane:    sa  vie — ses  devoted  to  the   medical  study  of  the 

extases — ses   stigmates.     Etude  Medi-  facts. 

cale,  par  le  Dr.  F.  Lefebvre,  pp.  3(30:  "He   devotes   eighty  pages   to   the 

Louvain,  1870.'    The  mode  of  arrange-  subject  of  stigmatization,  and  a  hun- 

ment  of  the  volume  is  as  follows  :     In  dred  to  that  of  ecstasy.     The  author  of 

the  first  part  he  gives  a  short  biogra-  this  curious  volume  is  deserving  of  the 

phy  of  the  young  woman  ;  in  the  second,  highest    praise   for    tlie   conscientious 

he  enters  into  the  details  of  her  case ;  care  with  which   he   lias  investigated 

in  the  third,  he  discusses  the  hypothesis  this    almost   incredible    case.      I  may 

of  there  being  any  fraud  or  imposition  conclude   by  stating   that  he   informs 

practised;  while  the  fourth  and  con-  me  that  he  last  saw  his  patient  on  the 

eluding  part,  which  occupies  more  than  13th  of  January,  1871,  and  that  she 

three-quarters   of  the  whole   book,  is  continued  in  precisely  the  same  state 

{toujoiirs  le  meme).^^ 

543 


§  660.]       MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

been  able  as  yet  to  systematize  and  define  the  transforming  influ- 
ences of  human  affection  or  fear  ? 

The  most  cautious  psychologists  maintain  that  phenomena  such  as 
these,  or  similar  to  these,  are  explicable  on  natural  grounds.  Thus, 
in  Sir  William  Hamilton's  edition  of  Reid,  we  find  the  following 
passage : — 

"  No  man  can  show  it  to  be  impossible  to  the  Supreme  Being  to 
have  given  us  the  power  of  perceiving  external  objects  without  any 
such  organs  ;"  that  is,  our  organs  of  sense.  "  We  have  reason  to 
believe  that  when  we  put  off  these  bodies,  and  all  the  organs  be- 
longing to  them,  our  perceptive  powers  shall  rather  be  improved 
than  destroyed  or  impaired.  We  have  reason  to  believe  that 
the  Supreme  Being  perceives  everything  in  a  more  perfect  manner 
than  we  do,  without  bodily  organs.  We  have  reason  to  believe 
that  there  are  other  created  beings  endowed  with  powers  of  percep- 
tion more  perfect  and  more  extensive  than  ours,  without  any  such 
organs  as  we  find  necessary." 

To  this  Sir  William  Hamilton  adds  the  following  note  : — 
"  Plowever  astonishing,  it  is  now  proved  beyond  all  rational  doubt, 
that,  in  certain  abnormal  states  of  the  nervous  organism,  perceptions 
are   possible   through   other   than   the    ordinary  channels   of  the 
sense. "^ 

(c^)  §  660.  Historical  evidence  of  such  possession. — We  come 
next  to  the  question  whether  we  have  evidence  from  his- 
demonoi-  tory  that  there  has  ever  been  such  a  systematic  devia- 
bf^aSreS*^  tion  from  the  Divine  policy  as  is  implied  by  the  entrance 
phiioso-  Qf  specific  evil  spirits  into  specific  human  bodies,  fol- 
lowed by  a  supernatural  subjection  of  the  will  if  not  by 
a  merging  of  the  individuality  of  the  latter  in  the  former.  There 
is  little  doubt  that  this  was  taught  by  the  ancient  philosophers. 
Plato  unites  in  expressly  asserting  the  existence  of  demons,  who,  on 
his  theory,  are  the  sole  supernatural  agencies  by  which  the  Divine 
will  operates  on  the  human  heart.     liar  to  batfj.6vtov  fxifu^i  iatt  Oioi  n 

xat,  Oryjrov.      And  again  Epfirjvsvov  xai  8 lanopO ftevov  9toii  ra  rtap'  ivOpurtav, 
xat  dvOpartoti  ia  rtapa  OiiLv,  tujv  fxhv  tdi  5fjj-!ft5  xai  Ovaiae,  tuv  hi  raj  irttra^ftf 

•  See    Physics    and    Physiology    of        Spiritualism  and  Animal  Magnetism, 
Spiritualism,    by    W.    A.    Hammond,     by  G.  G.  Zerffi,  London,  1871^ 
M.D. :   New  York,  D.  Appleton  &  Co., 
1871. 

544 


FANATICO-MANIA. 


[§  661. 


ti  xai  d/iotSdj  tZv  Ovai^v.'^  He  tells  US  that  demoniacs  do  not  use  their 
own  dialect  or  tongue,  but  that  of  the  demons  who  have  entered 
into  them.^  Lucian  declares  "  the  j^atient  is  silent :  the  demon  re- 
turns the  answer  to  the  question  asked."  And  yet  at  the  same 
time  it  would  seem  that  the  possibility  of  the  cure  of  the  demoniacs 
by  medicine  was  recognized,  which  would  scarcely  be  the  case  if 
the  malady  was  regarded  as  exclusively  supernatural.  Thus  we  are 
told,  "  Helleboro  quoque  purgatur  lymphaticus  error. "^  And 
Josephus  and  the  Jewish  physicians  speak  of  medicines  composed 
of  stones,  roots,  and  herbs,  being  useful  to  demoniacs.^ 

§  6G1.  With  regard   to  the  New  Testament  history,  two  views 
have  been  taken,  each  of  which  has  the  sanction  of  au-    conflict  of 

thorities  distinguished  both  for  learning  and  for  loyalty    opinion  as 

to  3.u.Ln0— 
to  the  Chi-istian  cause.     On  the  one  hand,  it  is  urged    rityofNew 

that  the  language  of  the  Gospel  writers  is  express  to  the  on  the  sub- 
very  point ;  on  the  other,  it  is  maintained  that  the  ac-  ^'^^^' 
counts  given  by  them  may  all  be  understood  as  exhibiting  no  more 
than  the  phenomena  of  certain  diseases,  particularly  hypochondria, 
mania,  and  epilepsy  ;  that  the  popular  terms  were  used  to  describe 
these  diseases,  just  in  the  same  Avay  that  "Possession"  (Besessen- 
heit)  is  now  used  by  some  of  the  most  technical  German  psycholo- 
gists to  describe  the  same  thing ;  and  that  the  sacred  penmen  meant 
to  convey  no  more  than  that  the  patients  were  affected  with  the 
complaints  which  those  phrases  described.^ 


'  Plato,  Sympos.,  pp.  202,  203.  Lip- 
sis,  1829,  p.  252.  See  also  Plutarch, 
De  Defect.  Orac.  Farmer's  Essay  on 
the  Demoniacs. 

2  Plato,  apud  Clem.  Alex.  Strom.  I. 
405,  Oxon. 

3  Seren.  Sammon,  c.  27,  v.  507. 
«  Gittei,  f.  67. 

5  The  student  is  referred  to  a  very 
comprehensive  article  on  this  point,  by 
the  Rev.  J.  F.  Denham,  of  St.  John's 
College,  Cambridge,  in  Kitto's  Bib. 
Cyc,  tit.  Demoniacs,  in  whicli  the  argu- 
ments on  both  sides  are  very  fairly  ex- 
hibited ;  to  Farmer's  Essay  on  the  De- 
moniacs ;  to  Jahn's  Biblisches  Archii- 
ologie ;      to     Archbishop     Whateley's 

VOL.  I. — 35 


Lectures  on  Good  and  Evil  Angels ; 
to  Winer's  Biblisches  Real  Worten- 
buch,  art.  "  Besessene  ;"  to  Moses 
Stuart's  sketches  of  Angelogy,  in  Bib- 
liotheca  Sacra,  1843  ;  to  Bishop  Bur- 
gess' sermon  on  Demonology,  in  the 
Phil,  coiirse  of  Lectures  on  Evidences, 
Phil.  1854;  to  President's  Appleton's 
discourse  on  the  same  ;  and  to  a  very 
brilliant  though  eccentric  treatise,  pub- 
lished under  the  title  of  "  The  Apoca- 
tastasis,  or  Progress  Backwards,"  Bur- 
lington, Vt.,  1854.  See  also  "  Physiology 
of  Soul  and  Instinct,"  by  Dr.  Martyn 
Paine,  New  York,  1872.  See  an  article 
by  R.  W.  Emerson,  North  American 
Rev.,  No.  124,  p.  179. 

545 


§  662.]       ME^TTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§  661  a.  But  TN-ithout  any  further  attempt  to  determine  the  question 

Avhether  demoniac  possession  is  tau^rht  as  a  fact  by  his- 
Demoniac  .  .         . 

possession     torj,  either  sacred  or  profane,  we  revert  to  the  inquiry 

novr  exist.  ^^  to  whether  it  exists  at  the  present  day.  x\nd  the 
analysis  we  have  just  given  of  the  phenomena  on  which 
such  possession  now  rests,  justifies  us  in  saying,  that  in  a  lego- 
psychological  view,  we  have  no  evidence  of  any  such  present  exist- 
ence. All  modern  phenomena  can  be  satisfied  by  the  recognition 
of  the  independent  existence  of  that  species  of  mania  which  causes 
an  insane  belief  in  the  patient  that  he  is  possessed  with  a  demon. ^ 

"Where  insanity  is  substantively  proved,  then  supposed  super- 
natural direction  to  commit  an  ofi"ence  is  a  defence  to  an  indictment. 
It  is  otherwise,  however,  where  the  defendant  is  sane,  for  the  sane 
are  responsible  for  the  rightfulness  of  their  conclusions,  so  far  as 
these  conclusions  exhibit  themselves  in  overt  acts.^ 

(5)  Religious  insanity/. 

(a^)  §  662.  Christianity,  taken  in  its  practical  sense,  has  no 
tendency  to  produce  insanity. — "  To  tell  a  man  he  cannot  save 
himself,  but  that  if  he  trust  in  God,  God  will  save  him" — we 
paraphrase   a   passage    from  Coleridge — "  is    the    lamb    in   wolfs 

'  Schiirmayer,  GericM.  Med.  §  550.  p.  214.     (Infanticide  by  a  demoniac.) 

And  see  Essays  on  Derangement  in  con-  Henke's  Zeitschr.  27  Bd.  p.  330  (Peri- 

nection  with.  Religion,  by  John  Clieyne,  odical   Demonio-mania).      Demoniacal 

M.D.,  F.R.S.E.,   M.E.I. A.,   Physician-  possession,  as  Siebold  (Gericht.  Med.  § 

General  to  His  I\Iajesty's  Forces  in  Ire-  210)  very  justly  remarks,   "was  much 

land  :  Dublin,  1843,  p.  68,  etc.    On  the  more  common  in  former  days  than  the 

subject  of  demoniacs  generally,  Whate-  present,  and  of  this,  to  say  nothing  of 

ley's  Good  and  Evil  Angels,   Lecture  the  New  Testament  period,  illustrations 

VI.     For  a  case  of  supposed  Demoni-  may  be   found  in   the   many  cases  of 

acal  Possession,  see  Journal  of  Psycho-  witches,  seers,  and  soothsayers  of  the 

logical  Medicine,  vol.  iii.  p.  262 ;  Metz-  middle  ages.     The   Convulsions,   etc., 

ger's  verm.  Schrift.  Bd.  3,  s.  217  ;  Ces.  of  St.  Medard  fall   under  this   head. 

Ruggieri's  history  of  the  self-crucifixion  See   Hecker   on   the    Dancing    Mania, 

of  M.  Lovati,  at  Venice,  translated  by  Berl.    1832.      Published    also   by   the 

Schlegel,  Rudolst,  1807.     (In  the  lat-  Sydenham  Society.     And  also  a  series 

ter  case,   the  patient  first  cut  off  his  of  very  curious  and  valuable  articles 

own  private  members,  and  then  cruci-  on  Pythonic  and  Demoniac  Possession, 

fied  himself.)    Henke's  Zeitsch.  E.-H.,  in   Dublin  Univ.  Mag.  for  Sept.  and 

11  s.  291.    (Two  Swiss  girls,  who  immo-  Oct.  1848,  for   March  and  Dec.  1849, 

lated  themselves.)     Henke's  Zeitschr.  and  for  January,  1850. 
Bd.  47,  p.  447.    (Pyl's  essay,  6Samml.        2  Supra,  §§  146-162. 

546 


RELIGIOUS   INSANITY.  [§  663. 

clothing ;  to  tell  him  that  he  can  save  himself  without  help  is  the 
wolf  in  lamb's  clothing."  The  first  is  mercy  in  a  dress  of  severity  ; 
the  second  cruelty  in  a  dress  of  mercy.  "  Only  try,"  says  the 
philosopher,  "  trust  in  yourself,  and  you  will  conquer  this  evil 
habit."  "  But  I  liave  tried — I  have  trusted  in  myself — I  have 
failed,  and  I  know  that  if  I  am  to  be  judged  by  my  works,  I  will 
be  condemned."  "Only  try,"  says  Christianity;  "throw  your- 
self for  mercy  on  Christ — He  will  supply  all  your  wants,  will 
make  up  all  your  deficiencies,  and  ^^ill  save  you  in  the  end,  if  you 
but  give  a  childlike  faith  to  Him."  Now,  which  of  these  two  doc- 
trines is  the  least  likely  to  agitate  the  mind — that"  which  thus  offers 
immediate  pardon  and  future  peace  on  the  sole  condition  of  present 
repentance  and  trust,  or  that  which  makes  salvation  dependent  on  a 
calculation  of  the  sins  and  the  good  deeds  of  the  past — which  makes 
it  necessary,  before  a  sure  conclusion  be  reached,  that  the  most 
secret  recesses  of  memory  be  searched — and  which  after  all  leaves 
the  inquirer  with  a  crushing  consciousness  of  an  evil  nature  which 
infuses  sin  into  his  very  thoughts,  and  for  which  there  is  neither 
atonement  nor  cure  ? 

The  moral  bearing  of  this  question  is  thus  stated  by  Sir  James 
Macintosh  :  "  The  enormities  of  Tetzel  found  Luther  busied  in  the 
contemplation  of  the  principle  which  is  the  basis  of  all  ethical  judg- 
ment, and  by  the  power  of  which  he  struck  a  mortal  blow  at  super- 
stition. Men  are  not  made  righteous  by  performing  certain  actions 
which  are  externally  good ;  but  men  must  have  righteous  principles 
in  the  first  place,  and  then  they  will  not  fail  to  perform  virtuous 
actions."  "  The  general  terms  he  used,  enunciate  a  proposition 
equally  certain  and  sublime,  the  basis  of  all  pure  ethics, the  cement 
of  the  eternal  alliance  between  morality  and  religion,  and  the  badge 
of  the  independence  of  both  of  the  low  notions  and  dim  insight  of 
human  laws." 

§  663.  "But  predestination?"  There  is  no  doubt,  that,  if  the 
doctrine  of  predestination  be  unduly  dwelt  upon,  it  may  injuriously 
aff"ect  the  brain ;  but  this  is  not  a  religious  difficulty.  Predestina- 
tion operates  as  eff"ectively  on  things  temporal  as  on  things  spiritual. 
The  loss  of  a  friend,  the  purchase  of  a  house,  my  going  on  a  journey 
to-morrow,  my  taking  a  book  this  next  moment  from  the  library  by 
my  side,  are  as  much  the  matters  of  foreordination  as  are  the  great 

547 


§  665.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

conditions  of  the  future.     If  religion  be  abandoned  because  it  in- 
volves such  speculations,  so  must  all  human  thought  whatever.^ 

§  664.  Reducing  the  controversy  within  its   proper  limits,  the 
-p  contending   views   may  be   thus  stated :     Philosophical 

cai  neces-  necessity  consists  of  the  divine  sovereignty,  incorporat- 
libertarian-  ing  within  itself,  and  recognizing  as  an  independent 
ther'incon-  power,  free  agency;  libertarianism,  of  free  agency, 
sistentwith  capable,  within  its  own  range  of  action,  of  voluntary 
choice,  but  dependent  for  self-renovation  on  divine  grace. 
In  other  words,  each  system  consists  of  the  same  two  great  truths 
apparently  hostile,  yet  ever  consistent  in  human  consciousness. 
Law  is  sovereign  ;  will  is  free.  If,  in  respect  to  the  question  of 
the  primacy  of  these  truths,  there  should  be  great  diversity  of  opinion 
— if  by  one  class  of  thinkers  the  one  is  placed  first,  and  gazed  at 
with  peculiar  reverence,  if  by  another  the  other — this  is  no  more  than 
we  find  in  civil  society,  where  the  two  parallel  elements  of  indi- 
vidual liberty  and  governmental  authority  are  subject  to  the  same 
treatment.  The  question  is  one  of  temperament.  In  sociology  we 
find,  on  the  one  side,  those  who  look  up  with  peculiar  reverence  to 
the  conservative  power  of  government,  who  distrust  the  capacity  of 
bodies  of  men  for  self-government,  who  turn  fondly  to  the  past  and 
sadly  to  the  future  ;  on  the  other  side,  those  who,  holding  that  true 
conservatism  requires  constant  change  in  order  to  withstand  the 
dilapidations  of  time,  have  an  a  2y')"iori  tendency  to  reforms,  and 
look  upon  the  past  mainly  as  a  platform  on  which  to  raise  the 
•achievements  of  the  future.  To  the  struggles  of  these  two  classes  of 
opinion— the  conservative  and  the  reforming — we  owe  a  great  part 
of  the  healthy  action  of  society.  No  man  would  now  affirm  that 
either  class  possesses  the  right  solely,  or  that  the  apparently  hostile 
truths  of  human  independence  and  of  human  subordination  are  not 
concurrently  recognized  in  political  economy.  Among  those  engaged 
in  marshalling  the  two  cardinal  propositions  of  metaphysical  theology 
we  may  call  for  the  same  charity.^ 

§  665.  As  is  remarked  by  Dr.  Rush,  in  Christian  countries  de- 
„  ,.  .  partures  from  the  Christian  faith  (e.  q.  infidelity  and 

Relig-ion  ^  .  . 

>conduciye      atheism)  are  "frequent  causes"  of  insanity.     And  the 
same  is  equally  true  of  departures  in  the  direction  of 

'  :See  supra,  §  147-  ^  Wharton  on   Theism,  §  128.     See 

also  supra,  §  147. 

548 


RELIGIOUS    INSANITY.  [§  666. 

ignorant  and  fanatical  superstition.  The  former  position  is  readily 
explained.  The  soul,  as  well  as  the  body,  to  enable  it  to  stand 
steadily,  requires  that  the  eye  shall  be  fixed  upon  some  distant  and 
external  point.  No  man,  for  instance,  can  stand  for  any  time  on 
one  foot  if  he  fixes  his  eye  on  his  own  person  ;  and  he  succeeds  in 
maintaining  his  upright  position  precisely  to  the  extent  he  is  able 
to  fix  his  eye  firmly  on  a  point  in  the  distance.  And  in  a  psycho- 
logical view  this  is  readily  explicable.  It  is  only  by  the  recognition 
of  a  future  state  that  the  soul  can  be  effectually  steadied  in  this. 
And  it  is  precisely  such  a  system  as  the  Christian  religion  describes 
— one  which  affords  a  positive  assurance  of  immortal  peace  to  those 
who  seize  upon  it  for  their  portion — which,  while  it  recognizes  that 
innate  depravity  which  the  heart  is  but  too  ready  to  testify  to  from 
its  own  experience,  promises  divine  aid  in  the  struggle — which 
announces  the  pardon  of  past  sin,  while  it  affords  the  aid  and  succor 
of  divine  grace. 

"  I  envy  no  quality  of  the  mind  or  intellect  in  others,  nor  genius, 
nor  poAver,  nor  fancy,"  says  Sir  H.  Davy  :  "  but  if  I  could  choose 
what  would  be  most  delightful,  and,  I  believe,  most  useful  to  me,  I 
should  prefer  a  frm  religious  belief  to  every  other  blessing :  for  it 
makes  life  a  discipline  of  goodness  ;  creates  new  hopes  when  all 
earthly  hopes  vanish ;  and  throws  over  the  decay,  the  destruction 
of  existence,  the  most  gorgeous  of  all  lights  ;  awakens  life  in  death, 
and  calls  out  from  corruption  and  decay,  beauty  and  everlasting 
glory." 

The  habitual  practical  recognition  and  adoption  of  such  a  system 
as  this  must  necessarily  generate  a  sobriety  of  temper,  which  will 
of  all  others  be  the  most  distant  from  derangement.  That  the  re- 
ception of  Christianity,  whether  real  or  nominal,  should  cure  in- 
sanity, is  no  more  to  be  expected  than  that  it  should  cure  the  smallpox. 
If  it  did — if  a  special  miracle  was  wrought  for  the  purpose  of  de- 
stroying the  original  characteristics  of  each  individual — it  would 
not  only  destroy  moral  agency  and  hence  break  up  probation,  but 
would  produce  an  almost  entire  derangement  of  human  affairs  by 
obliterating  the  marks  of  individuality,  to  say  nothing  of  identity. 

§  666.  To  the  same  effect  are  the  following  observations  of 
Dr.  Copland :  "  It  must  not  be  supposed,  from  what  I  have  ad- 
vanced, that  the  Christian  religion  is  truly  chargeable  with  causing 
insanity ;  it  actually  has  an  opposite  tendency.     Mistaken  views, 

549 


§  667.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

excessive  fervor,  unfounded  fears,  and  various  feelings  arising  from 
these  sources,  are  the  only  causes  of  insanity  in  connection  with 
religion.  Among  those  who  entertain  just  and  sober  opinions  on 
religious  topics — who  make  Christian  doctrines  the  basis  of  their 
morals,  the  governors  of  their  passions,  the  soothers  of  their  cares, 
and  their  hopes  of  futurity — insanity  rarely  occurs.  The  moral 
causes  of  derangement  which  would  not  fail  of  producing  injurious 
effects  on  others  prove  innocuous  in  them,  for  these  causes  would  be 
met  by  controlling  and  calming  considerations  and  sentiments,  such 
as  would  deprive  them  of  intensity  or  neutralize  their  effects. 
Truly  religious  sentiments  and  obligations  soothe  tiie  more  turbu- 
lent emotions,  furnish  consolations  in  affliction,  heal  the  wounded 
feelings,  administer  hopes  to  the  desponding,  and  arrest  hands  of 
violence  and  despair."^ 

§1  667.  And  the  testimony  of  Dr.  Cheyne,  who  stood  for  many 
years  at  the  head  of  the  medical  profession  in  Ireland,  occupying 
the  responsible  post  in  that  kingdom  of  physician-general  to  the 
forces,  is  equally  emphatic  :  "  Our  experience  of,  and  inquiries  into 
the  nature  of  insanity,  during  a  period  of  forty  years,"  he  says, 
"  enable  us  to  say  that  such  cases  as  that  wdiich  we  have  just  re- 
lated" (those  of  insanity  from  morbidity  of  the  religious  affections) 
"  are  not  in  the  proportion  of  one  in  a  thousand  to  the  instances  of 
insanity  which  arise  from  wounded  pride  or  disappointed  ambition. "^ 
"  True  religion,"  he  tells  us  in  another  place,^  "  is  a  preservative, 
although  not  a  complete  preservative,  against  derangement  of  the 
mind.  We  have  no  intention  of  concealing  that  we  have  known  in- 
stances of  insanity  among  believers,  but  it  was  not  caused  by  their 
creed.  We  have  also  known  instances  in  Avhich  all  sense  of  religion 
has  been  permanently  destroyed  by  insanity.  Of  such  cases  we 
would  remark,  that  the  believer  has  no  right  to  expect  for  his 
believing  friend  exemption  from  evils  arising  from  the  state  of 
the  body  on  which  insanity  always  depends.  Let  him  moreover 
recollect,  that  as  total  insanity  puts  an  end  to  moral  accountability, 
nothing  which  may  take  place  during  a  paroxysm  of  the  disorder 
can  affect  the  future  happiness  of  his  friend." 

'  Copland,  Med.  Die,  art.  "In-  ^  Cheyne  on  Derangement  in  Con- 
sanity."  nection  with  Religion,  pp.  178,  179. 

3  Ibid.  p.  146. 
550 


RELIGIOUS   INSANITY.  [§  669. 

§  668.  These  views  are  not  uncorroborated  by  practical  observa- 
tion. It  is  not  necessary  to  record  the  cases  where  mania,  parti- 
cularly that  of  the  suicidal  cast,  has  been  generated  by  an  undue 
estimate  of  the  importance  of  this  life's  incidents  as  compared  with 
those  of  the  next.^  On  the  other  hand,  we  may  find  a  pregnant 
illustration  of  the  converse  process  in  the  fact  mentioned  in  the 
thirteenth  report  of  the  Hartford  Retreat,  that  two  hundred  and 
eight  farmers,  fifty-eight  merchants,  and  thirty -four  day-laborers 
have  been  admitted  into  that  institution  to  four  clergymen.  So  a 
report  of  the  New  York  State  Lunatic  Asylum,  transmitted  to  the 
legislature  on  February  7,  1860,  and  which  therefore  covers  a 
period  of  uncommon  religious  interest,  out  of  812  cases  gives  only 
six  which  are  attributed  to  "  religious  excitement."  The  cases 
attributable  to  causes  which  religion  could  have  corrected  are  ten 
times  that  number.  Dr.  Ray,  in  a  report  of  the  Butler  Hospital  for 
the  Insane,  says  :  "  I  believe — and  it  is  in  some  measure  the  result 
of  considerable  observation  of  various  psychological  states — that  in 
this  age  of  fast  living  nothing  can  be  relied  upon  more  surely 
for  preserving  the  healthy  balance  of  the  mental  faculties  than 
an  earnest  practical  conviction  of  the  great  truths  of  Christianity." 

{¥)  §  669.  What  is  called  religious  insanity  is  produced:  (a^) 
By  a  departure  from  practical  Christianity ? — John  Newton  was 
the  religious  adviser  of  Cowper,  and  has  been  charged  by  Hayley, 
if  not  by  Southey,  with  having  aggravated,  by  his  emotional  theo- 
logy, Cowper's  insanity.  Yet  how  unjust  this  is,  Newton's  ear- 
nest and  repeated  appeals  show.      "  He  who  wants  to  tell  expe- 

i  Dr.  Rash,  after  noticing  the   fact  *  Shakspeare  thus  says  :— 

that  150  suicides  took  place  in  Paris  in  "Because  you  lack  the  faith  that  others 

the  year  1782,  and  but  32  in  London,  have, 

says,  "It  is  probable  the  greater  per-  You  judge  it  straight  a  thing  impos- 

tion  of  infidels  in  the   former  than  in  sible 

the  latter  city,  at  that  time,  may  have  ^o  compass  wonders  save  with  help  of 
occasioned  a  difference  in  the  number 

of  deaths  in  the  two  places,  for  suicide  Of  alleged  homicidal  insanity  pro- 
will  naturally  follow  small  degrees  of  duced  by  "  fanatico-atheism,"  a  case 
insanity,  where  there  are  no  habits  of  of  much  interest,  that  of  Bieland,  who, 
moral  order  from  religion,  and  no  be-  in  1869,  shot  a  Berlin  clergyman  while 
lief  in  a  future  state." — Rush  on  the  engaged  in  performing  divine  service, 
Mind,  p.  69.  will   be  found  in  the  Appendix  to  3d 

edition  of  tliis  work,  §  833. 

551 


^  670.1       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

riences,"  said  he  at  one  time,  "  will  soon  be  creating  experiences 
to  tell."  "  A  humble,  dependent  frame  of  spirit,  perseverance  in 
the  appointed  means,  care  to  avoid  all  occasions  of  sin,  a  sincere 
endeavor  to  glorify  God,  an  eye  to  Jesus  Christ  as  our  all  in  all, 
are  sure  indications  that  the  soul  is  thriving,  whether  sensible  con- 
solation abound  or  not.  Neither  high  nor  low  frames  Avill  do  for  a 
standard  of  faith  ;  self  may  be  strong  in  both."^  Could  there  be 
wiser  advice  than  this  for  the  purpose  of  steadying  the  mind  ?  And 
is  not  the  certain  faith  on  an  intrinsic  Providence  far  more  likely 
to  conduce  to  mental  peace  and  rest  than  that  flurried  and  fluctuat- 
ing introspection  which  makes  salvation  depend  upon  one's  present 
impression  of  self  ? 

§  670.    Two  cases  of  alleged  fanatico-mania  occurred  in  1858, 

one  in  Germany  and  one  in  New  Haven,  which,  from 

unscrip-        their  striking  similarity,  as  well   as  from  the  peculiar 

turai  super-  religious  psychological  phenomena  by  which  they  were 
naturalism.  o  i    j  o  r  j  j 

attended,  should  receive  the  thoughtful  attention  of  all 
in  any  wise  concerned  in  the  care  of  the  mind.  In  both  instances 
the  scene  was  the  bosom  of  a  religious  society,  whose  leaders  pre- 
tended to  have  received  special  internal  revelations  from  God.  In 
each  case,  the  "  prophets,"  as  those  who  claimed  such  revelations 
called  themselves,  asserted  the  right  to  suspend  human  laws  and 
even  divine  precepts  in  obedience  to  the  mandates  which  they  main- 
tained were  revealed  in  the  chambers  of  their  own  souls.  It  is 
difficult  to  deny  that  they  were  in  one  sense  sincere.  However 
much  the  delirium  in  which  these  visions  were  heard  was  originally 
of  their  own  creation,  it  had  become,  as  delirium  tremens  is  to  the 
man  who  at  first  made  himself  voluntarily  drunk,  so  wrought  into 
the  system  as  to  be  convulsive,  if  not  irresistible.  In  the  New 
Haven  case,  though  the  investigation  was  not  conducted  by  men  of 
the  highest  skill  or  most  mature  experience,  this  opinion  was  sanc- 
tioned by  the  verdict  of  a  jury.  In  the  German  case  the  most  ex- 
perienced psychological  physicians  united  in  the  position  that  the 
delusion,  whatever  might  have  been  its  origin,  had  finally  become 
involuntary.  In  the  latter  case,  the  parties  had  joined  a  sect 
called  the  "Apostolic  Baptismal  Community,"  which  is  a  sort  of 
composition  between  the  German  Anabaptists  (Wiedertaufen)  and 

!  Cited  in  "  Man,  Moral  and  Pliysi-     great  interest  in  reference  to  religion^ 
cal,"  by  Rev.   J.  H.  Jones,  a  work  of    insanity  and  melancholy. 

552 


RELIGIOUS   INSANITY.  [§  671. 

the  Irvingites.  Their  ministry  is  divided  into  apostles,  prophets, 
evangelists,  shepherds  (Hirten),  and  deacons,  all  distinguished  hj  a 
special  costume.  Thej  pretend  to  special  and  miraculous  commu- 
nications of.  the  divine  will,  which  communications  are  attended  on 
the  part  of  the  recipient  by  convulsions,  which,  however  they  may 
have  been  originally  feigned,  have  in  many  cases  assumed  the  in- 
disputable type  of  cataleptic  ecstasies.  In  these  the  patients  speak 
with  what  are  called  unknown  tongues,  and  prophesy.  It  so  hap- 
pened that  at  one  of  their  meetings  two  of  the  ministers  received, 
as  they  declared,  a  direct  supernatural  command  to  kill  one  of  their 
associates,  and  then  to  bring  him  to  life  again.  The  first  injunction 
they  executed,  but  failed  in  the  second.  The  question  of  their  re- 
sponsibility being  submitted  to  medical  examination.  Dr.  Franz,  a 
very  distinguished  psychologist,  came  to  the  conclusion  that  their 
moral  sense  had  become  so  utterly  corroded  as  to  make  perpetual 
confinement  in  a  madhouse  the  only  discipline  to  which  they  could 
properly  be  subjected. 

§  671.  Now,  to  what  are  these  phenomena  to  be  traced?  To 
Christianity,  as  one  class  of  thinkers  is  but  too  ready  to  say  ?  We 
apprehend  not,  for  Christianity  is  emphatically  a  religion  with  a 
written  and  positive,  as  distinguished  from  an  emotional  and  mystic, 
creed.  Is  it  not  rather  in  the  departure  from  the  Scriptural  rule 
Ave  may  find  the  origin  of  these  melancholy  excesses  ?  Let  us  trace 
them,  for  instance,  to  their  source  by  those  stepping-stones  which 
so  often  enable  us  to  follow  the  progress  of  an  error  from  its  incep- 
tion to  its  close.  TaTie,  for  instance,  such  a  case  as  that  of  the 
Rev.  David  Austen,  whose  sad  history  is  so  touchingly  told  by  Dr. 
Sprague  in  his  history  of  the  American  pulpit.  Mr.  Austen  began 
as  a  Presbyterian  clergyman,  and  was  marked,  not  only  by  his 
purity  of  life  and  his  talents,  but  by  his  great  efiiciency  as  a  pastor 
and  influence  as  a  preacher.  Gradually,  however,  the  objective 
side  of  revelation  began  to  sink  in  his  estimation,  and  the  subjective 
to  become  exaggerated.  He  had  visions  which  overrode  the  written 
word.  The  Lord  had  been  pleased,  he  said,  to  deposit  in  his  breast 
the  secret  of  His  coming.  This  and  other  revelations  Mr.  Austen 
began  soon  to  proclaim  with  serene  confidence  and  with  startling 
effect.  He  fixed  an  actual  day,  in  which  he  said  the  event  Avas  to 
take  place.  Crowds  attended,  and  an  excitement  folloAved,  which, 
if  it  did  not  cost  others  their  reason,  at  least  cost  him  his.     The 

553 


§  671.]      MENTAL   UXSOUXDXESS    COXSIDERED    PSYCHOLOGICALLY. 

fact  that  the  sun  set  cahnlj  on  the  predicted  day  did  not  shake  his 
confidence.  "  The  hour  on  the  dial-plate,"  he  said,  "  may  have 
been  mistaken ;"  but  it  was  none  the  less  true  that  the  sun  of  the 
Divine  Omniscience  poured  infallible  light  on  the  disk  of  his  soul, 
opening  to  it  those  mysteries  which  the  sublime  imagery  of  the 
Apocalypse  conceals.  The  Jews  were  to  form  an  important  element 
in  the  approaching  catastrophe.  They  were  to  collect,  he  was  as- 
sured, at  New  Haven  preparatory  to  their  migration  to  the  Holy 
Land.  He  proceeded  there  to  buy  wharves  as  a  depot  for  their 
embarkation.  Being  a  man  of  considerable  property,  he  obtained 
credit  and  bought  four  times  as  much  land  as  he  could  pay  for. 
Then  came  a  crash  which  ended  with  his  arrest  and  imprison- 
ment. When  he  at  last  emerged,  it  was  only  as  a  broken-hearted 
as  well  as  a  deranged  man,  whose  melancholy  office  it  was  to  hover, 
during  the  remainder  of  his  sad  and  long  life,  as  a  ghost  over  the 
grave  of  his  dead  usefulness. 

JSTow,  is  it  saying  too  much  for  us  to  attribute  these  and  similar 
cases  of  supposed  supernatural  inspiration  to  that  introversion  of 
the  spiritual  and  intellectual  powers  which  makes  personal  emotions 
and  experience  the  subject  first  of  tender  nursing  and  then  of  fatu- 
ous idolatry  ?  "  Come,  let  us  look  at  this  sensibility  of  mine  !" 
cries  the  enthusiast,  as  he  lifts  it  up  in  the  air  and  ponders  over  it 
admiringly.  The  consequence  is,  that  his  perception  of  his  emotions, 
as  all  introverted  perceptions  are,  becomes  exaggerated  and  con- 
fused. We  all  have  familiar  illustrations  of  this  in  the  way  in 
which  when  we  turn  the  perceptive  powers  inward  on  a  lost  memory, 
e.  f/.,  the  spelling  of  a  forgotten  word — the  more  we  think  about  it, 
the  further  off  we  get.  The  very  act  of  introversion  seems  to  par- 
alyze our  powers.  So,  also,  if  the  public  speaker,  while  in  the  flow 
of  earnest  thought,  finds  his  consciousness  suddenly  turned  in  upon 
himself,  the  moment  he  thinks  of  Jiimself,  he  loses  his  balance. 
This  is  thus  forcibly  illustrated  by  the  Rev.  C.  H.  Townsend,  late 
of  Trinity  Hall,  Cambridge,  in  his  very  curious  work  on  Mes- 
merism : — ^ 

"  Any  admixture  of  the  introspective  consciousness  detracts  from 
the  perfection  of  one's  acquired  and  habitual  motions  as  much  as  it 
spoils  the  freedom  and  bold  expansion  of  our  thoughts.     Of  this  we 

>  London,  1844,  p.  20. 

554 


RELIGIOUS    INSANITY.  [§  673. 

may  soon  convince  ourselves.  Though  generally  insensible  of  the 
act  of  breathing,  we  may,  by  attention,  become  aware  of  the  pro- 
cess. What  follows  ?  An  immediate  sense  of  uneasiness  and  in- 
terruption of  that  regular  motion  which  seems  to  go  on  so  well  of 
itself.  Again,  that  winking  of  the  eye,  whereby  the  organ  is 
healthily  preserved,  becomes  a  torment  if  we  think  about  it.  Again, 
too,  every  musician  must  have  felt  that  when  he  has  learned  to  play 
a  piece  of  music  by  heart,  if  he  tMnks  upon  the  direction  of  his 
fingers,  he  plays  false.-  Let  him  trust  to  the  simple  memorial  con- 
sciousness of  his  physical  being,  and  he  does  not  err." 

§  672.  The  true  test,  we  apprehend,  is  to  be  found  in  the  nature 
of  the  consciousness  on  which  the  claim  to  a  Divine  influence  rests. 
If  this  consciousness  be  of  the  action  of  God's  spirit  in  producing 
specific  graces,  it  is  in  harmony  with  God's  word.  If,  on  the  other 
hand,  it  amount  merely  to  a  vague  but  arbitrary  idea  of  the  pres- 
ence of  God's  Spirit  without  such  signs,  it  is  open  to  grave  ques- 
tion. Coleridge  strikes  at  this  when  he  tells  us  that  one  of  the 
phenomena  attending  the  possessors  of  fanatical  delusions  is,  "  that 
it  is  not  enough  that  you  grant  them  a  consciousness  of  the  gifts 
and  graces  infused,  or  an  assurance  of  the  spiritual  origin  of  the 
same,  grounded  on  their  correspondence  with  the  Scripture  promises, 
and  their  conformity  with  the  idea  of  the  Divine  Giver.  No  !  they 
all  alike,  it  will  be  found,  lay  claim,  or  at  least  look  forward  to,  an 
inward  perception  of  the  Spirit  itself  and  of  its  operating." 

§  673.  Let  us  reduce  this  test  to  practice.  Take,  for  instance, 
the  inspiration  of  Brigham  Young.  "  It  is  the  Spirit  working  with- 
in me"  to  do,  not  this  or  that  specific  work  of  grace,  but  whatever 
work,  no  matter  what  may  be  its  nature,  in  which  I  may  happen  to 
be  engaged.  So  it  was  with  the  Anabaptist  fanatics  at  Munster. 
The  human  will  is  not  subjected  to  the  Divine  Spirit,  but  the  Divine 
Spirit  to  the  human  will.  The  man  is  not  judged  by  his  conformity 
to  the  Spirit,  but  the  Spirit  by  its  utterance  through  the  man. 
What  Brigham  Young  claimed  Avas  not  simply  to  act  in  the  Spirit, 
for,  if  so,  his  claims  could  have  been  tested  by  the  written  word, 
and  by  the  law  of  conscience.  But  he  claimed  to  be  the  Spirit's 
organ,  and  thus  to  clothe  with  divine  power  his  human  utterances. 
So  it  is  with  the  maniac  who  murders  his  wife  and  children  under 
an  alleged  religious  impulse.  He  bases  his  claims  to  the  inspiration 
of  the  Spirit,  not  on  the  gracious  afiections  wrought  in  his  soul,  but 

655 


§  674.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

in  the  arbitrary  pretence  of  a  divine  presence  incorporating  itself 
in,  and  manifesting  itself  through,  his  own  will.^ 
•  §  674.  The  history  of  religious  insanity  in  this  country  goes  a 
great  way  to  fortify  the  position  that  it  is  to  a  departure  from  the 
gospel  system  that  most  cases  of  what  may  be  called  dgemonio- 
mania  may  be  traced.  On  this  point  a  thoughtful  writer,  whose 
attention  has  been  particularly  given  to  this  topic,  thus  speaks: — ^ 

"  Passing  over  the  many  instances  of  such  erratic  and  fanatical 
extravagances  which  history  records,  and  to  some  of  which  the 
review  before  us  alludes,  we  will  glance  at  two  recent  and  notable 
ones  occurring  among  ourselves,  that  we  may  the  better  judge 
whether  religion  makes  men  insane,  or  whether  it  merely  fails,  in 
many  cases,  to  bring  them  to  their  right  mind ;  so  that  it  may  be 
said  that  they  continue  insane  in  spite  of  all  that  religion  can  do 
for  them. 

"  A  clergyman,  in  infirm  health,  sought  to  amuse  his  listless 
hours  by  framing  a  puerile  romance,  after  the  manner  of  eastern 
fabulists,  with  names,  dates,  and  localities  bearing  no  relation  to 
sober  history.  These  writings,  in  some  way,  without  the  author's 
privity,  came  into  the  hands  of  strangers.  In  1826,  one  Joseph 
Smith  professed  to  have  found,  in  the  town  of  Palmyra,  N.  Y., 
some  brass  plates  inclosed  in  a  box,  such  as  is  used  for  packing 
window-glass.  Of  these  plates  he  pretended  to  be  the  interpreter. 
With  a  stone  in  his  hat,  and  his  hat  over  his  eyes,  he  dictated  what 
a  man,  named  Harris,  wrote.  In  consequence  of  some  dispute, 
Harris  departed  before  the  interpretation  was  ended,  and  one 
Cowdrey  took  his  place,  and  completed  the  '  Book  of  Mormon.' 
Smith  then  avowed  himself  a  prophet,  and  the  founder  of  a  new 
dispensation,  and  gathered  many  disciples,  who  accompanied  him  to 
the  State  of  Missouri,  where  they  established  a  city  and  built  a 
temple.     We  need  not  pursue  their  adventures. 

"  The  contents  of  the  Book  of  Mormon,  or  the  Mormon  Bible, 
were  neither  more  nor  less  than  the  selfsame  tales   of  romance 


'  See   on   this  topic  the  remarkable  reader  is  referred  for  a  very  effective 

volume,   which  has   been  already  no-  exhibition   of    the    absurdity    of    the 

ticed,  iinder  the  title,  "  The  Apocatas-  whole  spirit-rapping  system, 

tasis,  or  Progress   Backwards,  a  new  ^  Relations  of  Religion  to  Diseases  of 

tract  for  the  times,  Burlington,  Chaun-  the  Mind.    Phila.  :  J.  W.  Moore,  1850. 
cey  Goodrich,    1854,"    to    which   the 

556 


RELIGIOUS   INSANITY.  [§  674. 

which  the  invalid  clergyman  amused  himself  with  writing.  A  large 
number  of  persons,  however,  embraced  the  delusion ;  many  aban- 
doned a  profitable  business,  some  sacrificed  large  property,  and  not 
a  few  were  ruined  in  soul,  body,  and  estate,  by  putting  trust  in 
this  barefaced  imposture. 

"  It  is  perfectly  obvious,  we  think,  that  a  mind  well  informed 
and  established  in  the  received  doctrines  of  the  Christian  faith,  and 
endued  with  but  very  ordinary  discernment,  would  be  proof  against 
so  bold  an  imposture.  If  any  intelligent  and  respectable  persons 
joined  the  Mormon  ranks,  that,  of  itself,  shows  either  a  predisposi- 
tion to  insanity,  which  this  fanciful  revelation  was  fitted  to  develop, 
but  with  which  religion  has  no  connection  whatever  ;  or  that  there 
is  a  deficiency  of  discernment,  or  a  neglect  or  abuse  of  the  reason- 
ing powers,  or  a  morbid  love  of  distinction  and  notoriety,  to  gratify 
which  they  are  willing  to  sacrifice  all  other  interests.  If  a  judi- 
cious faithful,  parent  or  Sunday-school  teacher  had  given  direction 
to  their  inquiries,  and  furnished  their  minds  with  just  and  system- 
atic, though  exceedingly  simple,  views  of  the  doctrines  of  revela- 
tion, they  Avould  have  had  balances  wherewith  to  weigh  the  pre- 
tensions of  the  new  prophet,  and  by  means  of  these  vanity  and 
falsehood  would  have  been  made  manifest. 

"  At  a  somewhat  later  period,  a  man  named  Miller  (a  Baptist 
minister,  as  it  is  said)  professed  to  have  had  a  revelation  of  the 
precise  day  on  which  the  second  advent  of  Christ  would  occur,  and 
when  his  people  would  be  called,to  rise  and  meet  him  in  the  air ! 
He  and  his  deluded  apostles,  or  agents,  went  from  town  to  town 
and  from  house  to  house,  '  leading  captive  silly  women,'  and  im- 
posing upon  the  credulity  of  the  ignorant.  So  settled  was  the 
conviction  of  many  minds  of  the  truth  of  his  predictions,  that  they 
arranged  their  worldly  affairs  in  reference  to  it,  as  an  ascertained 
event,  and  made  no  contracts  extending  beyond  the  designated  day. 
Prosperous  citizens  sold  their  estates,  and  declined  the  ordinary 
avocations  of  life,  that  they  might  give  themselves  Avholly  to  the 
business  of  preparation ;  and,  as  the  eventful  period  drew  nigh, 
many  evinced  the  sincerity  of  their  convictions  by  providing  what 
they  regarded  as  suitable  apparel  for  an  aerial  flight,  and  some 
actually  assembled  in  groups  upon  summits  which  might  be  sup- 
posed most  favorable  to  an  early  and  easy  ascension  !  The  dupes 
of  the  false  prophet  were  counted  by  thousands.     Scores  were  com- 

557 


§  675.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

mitted  to  insane  asylums,  who  were  crazed  with  excitement,  or  with 
disappointment ;  and  many  within  and  without  the  charmed  circle 
were  doubtless  left  to  believe  that  all  revelations  are  as  idle  and 
delusive  as  Millerism.^ 

"  We  need  not  say  how  the  plainest  Scriptures  must  have  been 
wrested  from  their  true  intent  and  meaning,  nor  how  deaf  an  ear 
must  have  been  turned  to  the  voice  of  reason  and  common  sense, 
before  the  mind  could  have  surrendered  itself  to  such  a  fancy. 
There  is  not  a  trace  of  insanity,  however,  in  any  stage  of  the  pro- 
cess. It  is  a  simple,  voluntary  subjection  of  reason  to  the  influence 
of  imagination  or  superstition,  instead  of  a  childlike  submission  of 
all  the  powers  and  faculties  of  body  and  mind  to  the  revealed  will 
of  God.  And  although  we  may  admit  that  such  delusions  have  in 
many  instances  been  the  ostensible  cause  of  insanity,  as  our  hospital 
returns  allege,  '  revealed  religion'  is  no  more  responsible  for  them 
than  for  paroxysms  of  mania-d-potu.  It  is  because  the  plain  truths 
of  revealed  religion  were  misapprehended,  perverted,  or  rejected, 
that  the  imposture  succeeded,  and  the  mind  was  led  captive  by 
Satan  at  his  will.  It  is  not  strange  that  a  vessel  left  to  itself  on  a 
stormy  sea  should,  sooner  or  later,  go  to  the  bottom,  or  fall  into  the 
hands  of  wreckers. "^ 

§  675.  The  topic  of  the  appeal  to  the  selfish  element  has  already 
been  collaterally  noticed.^     In  all  periods  of  mental  ex- 

DcsirG  for 

sympathy  citement,  there  is  a  tendency  to  claim  sympathy  from 
comes^^"  outside.  A  person  is  struck  down  by  real  grief.  When 
chronic  and  -^^  ^]^^g  ^i^^^^  ^j^g  sympathy  of  friends  is  attracted  by  pecu- 
liar  demonstrations  of  broken-heartedness.  These  de- 
monstrations are  at  first  real,  but,  in  consequence  of  the  commisera- 
tion they  receive,  are  permitted  to  continue  without  restraint,  and 
then  become  at  least  partially  affected.  "  The  pleasure  of  receiv- 
ing unwonted  sympathy,"  to  recur  to  a  passage  from  Dr.  Carter, 
already  cited,  "  once  tasted,  excites  a  desire  for  it  which  knows  no 
bounds ;  and,  when  the  fits  have  become  famihar  occurrences,  and 
cease  to  excite  attention,  their  effect  is  heightened  by  the  designed 
imitation  of  some  other  disease."  There  is  a  strange  union  in  such 
cases  of  the  voluntary  with  the  involuntary,  which  partly  subjects 

>  See  an  essay  on  this  point,  in  1  called  Diseases  of  the  Mind.  Phila- 
Am.  Journ.  of  Insanity,  249.  delphia:    J.  W.  Moore,  1850. 

2  Relations  of  Religion  to  what  are        ^  gee  supra,  §  517. 

558 


RELIGIOUS   INSANITY.  [§  676. 

ci'aft  to  convulsion,  and  partly  convulsion  to  craft.  But  after  a 
while,  particularly  if  the  petting  system  on  the  part  of  friends  con- 
tinues, the  disease  becomes  chronic,  and  degenerates  into  hysteria. 
Even  then  there  is  cunning  employed  in  the  resort  to  new  devices 
by  which  fresh  sympathy  can  be  collected  when  the  old  stock  is 
exhausted. 

§  676.  The  same  influences  exist  in  periods  of  popular  excitement, 
either  on  religion  or  any  other  prominent  topic.    Let  the 
love  of  attention  be  appealed  to — let  public  interest  be    a  germ  of 
drawn  to  persons  exhibiting  certain  symptoms — and  these     ^^  ®"^" 
symptoms  will  be  assumed,  until  at  last  hypochondriasis  or  hysteria 
follows.     Intense  self-consciousness,  the  power  of  imitation,  and  the 
desire  to  excite  interest,  generate  this  form  of  disease,  which,  in  its 
turn,  generates  a  refined  and  elegant  but  misanthropic  selfishness. 

"  There  is  one  perversion  of  moral  feeling,"  says  Archdeacon 
Stopford,  in  a  pamphlet  published  at  the  time  of  a  revival  in  Ulster 
in  1858-9,  "  which  always  exists  in  hysteria,  and  more  than  any- 
thing else  may  make  us  doubt  whether  hysteria  be  chosen  of  God 
as  a  means  of  conversion,  and  that  is  selfishness.  Now,  I  protest 
against  being  thought  to  imply  that  all  persons  who  are  hysterical 
are  constitutionally  selfish.  I  have  known  the  contrary  in  several 
instances,  and  I  know  the  effect  in  such  cases  of  appealing  to  un- 
selfish feeling ;  but  it  will  be  easily  understood  from  the  foregoing 
account,  that  the  predominance  of  the  idea  of '  self  as  the  object  of 
the  mind  is  of  the  very  essence  of  the  disease,  and  it  is  the  neces- 
sary consequence  of  this,  if  allowed  to  loroceed,  to  engender  selfish- 
ness ;  the  woman  who  habitually  indulges  hysterical  feeling,  becomes 
the  most  selfish  and  unsympathetic  being  in  the  world,  except  one 
— the  man  who  indulges  and  cherishes  hypochondriacal  feeling. 

"  I  must  suggest  caution  in  coming  to  an  opposite  conclusion  on 
apparent  evidence  to  the  contrary  in  mild  forms  of  hysteria  in  its 
incijjient  stages.  I  struggled  long  against  admitting  that  the  pre- 
dominance of  the  idea  of  '  self  in  hysteria  always  contains  the  germ 
of  selfishness  ;  but  I  had  to  admit  the  conviction,  that  this  is  true. 
As  hysteria  grows  by  habit  or  indulgence,  all  its  evils  become  appa- 
rent ;  but  a  trained  observer  detects  the  germs  in  its  origin."^ 

'  In  connection  with  the  above,  it  is  remarks  of  a  sagacious  and  experienced 
well  to  call  attention  to  the  following     physician,  Dr.  Francis:    "In  at  least 

559 


§  678."]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 


(5^)  §  677.   By  constitutional  idiosyncrasies. — This   topic  has 
been  previously  noticed.^ 


^  678. 

Cannot  per 

se  confer 
irrespon- 
sibility. 


(o)  Fanatico-mania  as  a  defence. 
Crimes  committed  under  the  influence  of   fanatical  im- 
pulses, such  as  those   which  have  been  just  mentioned, 
may  be  considered  in  the  same  light  as  crimes  committed 
in  a  state  of  drunkenness.     In  the  latter  case,  an  indi- 


tliree  cases  out  of  four,  I  have  found 
hysteria  associated  with  uterine  de- 
rangement, and  the  restoration  of  the 
menstrual  function  to  its  healthy  state 
has  proved  the  precursor  of  the  re- 
moval of  the  hysterical  annoyance." 
Hysteria,  again,  may  manifest  itself 
chiefly  hy  disorder  of  the  mental  facul- 
ties, and  the  moral  feelings  and 
emotions.  "The  mental  aflfections," 
ohserves  Dr.  Copeland,  "connected 
with  hysteria  may  be  referred,  1st, 
to  certain  states  of  monomania,  among 
which  excited  desire,  amounting  in 
some  eases  to  nymphomania,  may  be 
enumerated ;  2d,  to  ecstasies  and  men- 
tal excitement,  in  some  cases  of  a 
religious  nature,  in  others  of  different 
descriptions  ;  3d,  to  a  state  of  somnam- 
bulism ;  4th,  to  a  form  of  delirium, 
generally  of  a  lively  character,  with 
which  various  hysterical  symptoms  are 
often  conjoined.  Hysterical  females 
are  not  merely  capricious  or  whimsical, 
but  they  often  become  enthusiastic  for 
a  time  in  the  pursuit  of  an  object,  or 
in  cherishing  an  emotion  by  which 
they  have  been  excited.  In  many  such 
cases  the  nervous  excitement  and  vas- 
cular turgescence  of  the  uterine  organs 
determine  the  character  of  the  mental 
disorder  ;  elevating  certain  of  the  moral 
sentiments,  or  of  the  intellectual  mani- 
festations, to  a  state  of  extravagance, 
passing  in  some  instances  into  delu- 
sion or  monomania.  Many  cases  of 
puerperal  mania  are  merely  extremes 
of  the  hysterical  disorder  of  the  moral 
and  intellectual  powers  or  states  of  the 

560 


mind.  All  these  more  extreme  forms 
of  mental  affection  are  observed  only 
where,  in  connection  with  much  local 
or  uterine  irritation,  there  is  a  great 
deficiency  of  nervous  energy  generally, 
and  of  mental  power  in  particular  ;  or 
where,  with  such  deficiency,  there  has 
been  much  injudicious  culture,  or  per- 
version or  improper  excitement  of  the 
imagination.  Females  sometimes  be- 
come passionately  attached  to  an  object, 
and  this  passion  may  advance  even  to 
nymphomania  or  monomania."  A  dis- 
eased state  of  feeling  (viewing  feeling 
and  thought  as  constituting  the  two 
factors  of  the  mind)  is  the  main  in- 
gredient of  religious  insanity  in  which 
the  sexual  sympathies  are  involved. 
"  No  physiologist,"  says  Dr.  Maudsley, 
in  his  lectures  published  in  1870  (^Body 
and  Mind,  London,  1870,  p.  85),  "can 
well  doubt  that  the  mystical  union 
of  the  sexes  lies  very  close  to  a  union 
that  is  in  no  wise  mystical,  when  it 
does  not  lead  to  madness."  He  cites 
to  this  effect  the  trances  of  St.  Theresa 
and  St.  Catharine  de  Sienne  ;  and  he 
mentions  as  more  extreme  examples 
the  cases  of  those  insane  women  who 
believe  themselves  to  be  visited  by 
lovers  or  ravished  by  persecutors  dur- 
ing the  night.  And  he  adds  that 
"sexual  hallucinations,  betraying  an 
ovarian  or  uterine  excitement,  might 
almost  be  described  as  the  character- 
istic feature  of  the  insanity  of  old 
maids."  See  supra,  §§  322,  517. 
1  Supra,  §§  345-378. 


POLITICO-MANIA. 


[§  681. 


vidual  who  knowingly  takes  intoxicating  liquor  cannot  defend 
himself  on  the  fact  of  guilt  by  proof  of  his  intoxication.  It  is 
otherwise,  however,  Avhen  the  guilty  act  is  the  immediate  result 
of  mania- d-potu,  in  which  case  the  malady  has  assumed  the  shape 
of  a  substantive  and  permanent  type,  and,  like  any  other  delirium, 
is  to  be  treated  as  destroying  responsibility.^  In  like  manner,  the 
voluntary  adoption  of  a  belief  which  includes  among  its  incidents  a 
known  violation  of  law,  does  not  relieve  the  party,  who  commits 
such  violation  of  law  under  such  influences,  from  responsibility.^ 
If,  however,  he  sink  into  consequential  delirium,  and  then  commit 
the  crime,  he  is  irresponsible. 

Fanatical  enthusiasm,  whether  religious  or  irreligious,  does  not, 
therefore,  bi/  itself  confer  irresponsibility,  however  much  it  may 
mitigate  the  sentence  imposed.^ 

10.  Politico-mania.'^ 

§§  679-681.  "Politico-mania,"  as  a  specific  defence,  is  unknown 
in  the  courts.  No  doubt  persons  unquestionably  insane  have  been  tried 


1  See  supra,  §^§  146-162. 

2  Ibid.  See  3  Am.  Jouru.  Ins.  166  ; 
and  for  report  of  Thorn's  case,  ibid. 
170.  See  also  4  Hammond's  Journal 
Psyc.  657.  See  102  Bost.  Med.  and 
Surg.  Journ.  265. 

^  Ibid.  See  for  a  curious  case  of  in- 
fidel fanaticism,  Appendix  to  3d  ed.  of 
this  work,  §  833. 

*  See  on  this  point  Influence  des 
Evenemens  et  des  Commotions  Poli- 
tiques  sur  le  Developpement  de  la 
Folia,  par  le  Docteur  Belhomme,  Paris, 
1849  ;  and  a  review  of  the  same  in 
Journ.  Psyc.  Med.,  vol.  iii.  p.  31. 

"Psychical  infection,"  to  use  the 
expressive  term  of  EUiuger,  is  peculi- 
arly operative  in  political  relations. 
Attempts  at  insurrections,  acts  of  law- 
lessness against  government,  murder- 
ous assaults  upon  public  officers,  be- 
come at  times  epidemic.  Marc  illus- 
trates this  by  the  cases  in  which  public 
conspicuous  crimes  have  become  con- 
tagious ;  e.  rj.,  arson  and  murder.    The 

VOL.  I. — 36 


tendency  to  seditious  violence  is  gene- 
rated by  an  oppressive  government 
bearing  on  temperaments  tainted  with. 
just  such  an  infection. 

"  Certain  forms  of  government," 
says  Dr.  Rush,  "  predispose  to  mad- 
ness. They  are  those  in  which  the 
people  possess  a  just  and  exquisite 
sense  of  liberty,  and  of  the  evils  of 
arbitrary  power  against  which,  com- 
plaints are  stifled  by  a  military  force. 
The  conflicting  tides  of  the  public  pas- 
sions, by  their  operations  upon  the 
understanding,  become  in  tliese  cases  a 
cause  of  derangement.  The  assassina- 
tion of  tyrants  and  their  instruments 
of  oppression  is  generally  the  effect  of 
this  disease.  That  madness  is  thus 
induced,  I  infer  from  its  occurring  so 
rarely  from  a  political  cause  in  the 
United  States.  I  have  known  but  one 
instance  of  it,  and  that  was  of  a  gen- 
tleman who  had  been  deranged  some 
years  before,  from  debt  contracted  by 
extravagant  living.     (In  a  government 

561 


§  681.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

Politico-       for  political  offences  ;  and  in  some  such  cases  the  defence 

mania  no  „.  -ii  n  -n      '  i-r> 

defence.        01  insanity  has  been  successiully  interposed.     Uut  at  no 

time  has  the  defence  been  offered  that  the  defendant, 

sane  in  all  other  respects,  was  insane  on  the  subject  of  government, 

and  therefore  irresponsible  for  any  attacks  on  government  which  he 

might  institute.     Logically  and  psychologically  this  defence  is  as 

good  as  that  of  any  other  "  monomania."      But  practically  the 

position  is  so  absurd  that  no  defence  has  heretofore  been    bold 

enough  to  offer  it.^     For  no  state  could,  without /eZo  de  se,  recog- 


where  all  the  power  of  a  country  is 
representative  and  elective,  days  of 
general  suffrage  and  free  presses  serve, 
like  chimneys  in  a  house,  to  conduct 
from  the  individual  and  public  mind 
all  the  discontent,  vexation,  and  re- 
sentment which  have  been  generated 
in  the  passions  by  real  or  supposed 
evils,  and  thus  to  prevent  the  under- 
standing being  injured  by  them.)  In 
despotic  countries,  where  the  public 
passions  are  torpid,  and  where  life  and 
property  are  secured  only  by  the  ex- 
tinction of  the  domestic  affections,  mad- 
ness is  a  rare  disease.  Of  the  truth  of 
this  remark,  I  have  been  satisfied  by 
Mr.  Stewart,  the  pedestrian  traveller, 
who  spent  some  time  in  Turkey,  also 
by  Dr.  Scott,  who  accompanied  Lord 
M'Cartney  in  his  embassy  to  China, 
and  by  Mr.  Joseph  Rexas,  a  native  of 
Mexico,  who  passed  nearly  forty  years 
of  his  life  among  the  civilized  but  de- 
pressed natives  of  that  country.  Dr. 
Scott  informed  me  that  he  heard  of  but 
a  single  instance  of  madness  in  China, 
and  that  was  in  a  merchant  who  had 
suddenly  lost  £100,000  sterling  by  an 
unsuccessful  speculation  in  gold  dust. "2 
With  regard  to  Mexico  and  China, 
however,  recent  observations  show  that 
these  remarks  should  be  greatly  quali- 
fied. 

'   "  The  British  government,  even  in 


our  day,  sentenced  to  death  the  Obeah 
men  of  the  West  Indies,  who  pretended 
to  supernatural  power  in  order  to  fo- 
ment rebellion."  Sir  Bartle  Frere, 
Nineteenth  Century,  Dec.  1881,  Am.  Re- 
print, 11,  citing  Edwards'  Hist.  Brit- 
ish Colonies  in  the  West  Indies,  vol.  ii. 
p.  106.  The  same  defence  was  un- 
availingly  set  up  by  the  assassia  of 
Lord  Mayo. 

The  Atlantic  Monthly  for  December, 
1881,  gives  an  interesting  article  on 
British  state  assassins  and  the  defence 
of  insanity.  The  first  case  mentioned 
is  that  of  Hadfield  in  1800.  In  this 
case  "Major  Ryan  testified  that  the 
prisoner,  in  a  paroxysm  of  madness, 
came  near  stabbing  him  with  a  bayonet 
at  the  Croydon  barracks  in  1796.  John 
Laine,  a  private,  deposed  that  Had- 
field, in  the  hospital  at  Brussels, 
imagined  himself  to  be  King  George, 
and,  calling  for  a  looking-glass,  felt 
about  his  head  for  his  crown  of  gold. 
Three  doctors  testified  to  the  fearful 
nature  of  his  wounds,  and  that  the 
resulting  injuries  had,  in  their  opin- 
ion, afi'ected  his  brain.  Several  of 
Hadfield's  relatives  deposed  that  he 
had,  at  difi"erent  times,  fancied  him- 
self to  be  Jesus  Christ  and  God.  On 
the  morning  of  the  day  on  which  he 
attempted  the  king's  life,  as  they  tes- 
tified, he  said  he  had  seen  God  in  the 


2  Rush  on  the  Mind,  p.  HQ. 


562 


POLITICO-MANIA. 


[§  681. 


nize  the  irresponsibility  of  such  a  "  mania.''''  To  do  so  would  be 
to  give  liberty  to  political  fanaticism  to  execute  without  restraint 
any  crimes  by  which  its  purposes  could  be  subserved. 


night,  and  that  he  (Hadfield)  had  heen 
dining  with  the  king. 

"  The  jury,  without  leaving  the  box, 
found  a  verdict  of  '  Not  guilty,  on  the 
ground  of  insanity,'  and  he  was  there- 
iipon  committed  to  Bedlam  '  during 
his  majesty's  pleasure.'  This  escape 
of  Hadfield  through  the  loop-hole  of 
insanity  was  strongly  resented  by  the 
public  opinion  of  the  day,  and  the  re- 
sent found  voice  in  parliament.  Some 
changes  in  the  law  followed,  of  which 
more  hereafter." 

Bellingham,  in  1811,  was  prosecuted 
for  shooting  Mr.  Perceval.  Bellingham 
had  been  a  long  and  persistent  claim- 
ant for  compensation  for  services  he 
claimed  to  have  rendered  the  govern- 
ment. On  being  asked  on  trial  what 
he  could  say  in  his  defence,  he  began 
"  by  complaining  that  the  papers 
necessary  to  his  defence  were  taken 
out  of  his  pocket  when  he  was  arrested, 
and  had  not  been  returned  to  him.  He 
then  expressed  his  '  great  obligation 
to  the  attorney-general  for  the  objec- 
tion which  he  has  made  to  the  plea  of 
insanity,'  and  made  a  rambling  speech, 
of  which  the  following  extract  is  a  fair 
specimen  : — 

"  'I  think  it  is  far  more  fortunate 
that  such  a  plea  as  that  should  have 
been  unfounded  than  it  should  have 
existed  in  act.  That  I  am  or  have 
been  insane  is  a  circumstance  of  which 
I  have  not  been  api^rised,  except  in 
the  single  instance  of  my  having  been 
confined  in  Russia  ;  how  far  that  may 
be  considered  as  affecting  my  present 
situation  it  is  not  for  me  to  determine. 
I  beg  to  assure  you  that  the  crime 
which  I  have  committed  has  arisen 
from  compulsion  rather  than  from  any 
hatred  of  the  man  whom  it  has  been 


my  fate  to  destroy.  Considering  the 
amiable  character  and  the  univers- 
ally-admitted virtues  of  Mr.  Perceval, 
I  feel  if  I  could  murder  him  in  a  cool 
and  unjustifiable  manner  I  should  not 
deserve  to  live  another  moment  in 
this  world.  Conscious,  however,  that 
I  shall  be  able  to  justify  everything 
which  I  have  done,  I  feel  some  degree 
of  confidence  in  meeting  the  storm 
which  assails  me,  and  shall  now  pro- 
ceed to  unfold  a  catalogue  of  circum- 
stances which,  while  they  harrow  up 
my  own  soul,  will,  I  am  sure,  tend  to 
the  extenuation  of  my  conduct  in  this 
honorable  court.' 

"  He  then  proceeded  to  read  a  long 
petition  about  his  visit  to  Russia ; 
what  he  had  done  there  for  the  govern- 
ment ;  how  he  had  left  his  wife  there 
in  great  distress ;  and  how,  since  his 
return,  he  had  applied  to  the  depart- 
ments in  vain  for  relief.  At  no  point 
in  his  statement  did  he  connect  Mr. 
Perceval  with  his  grievances,  or  ap- 
pear to  recognize  any  logical  necessity 
for  so  doing.  He  sat  down  at  last,  and 
his  doom  was  speedily  fixed." 

Edward  Oxford  was  tried  in  1840  for 
shooting  at  Queen  Victoria.  He  was 
put  on  trial  at  the  Old  Bailey  on  July 
9th  in  that  year. 

"  The  trial  lasted  three  days  ;  Lord 
Denman,  Baron  Alderson,  and  Justice 
Maule  on  the  bench,  and  the  array  of 
counsel  including  the  attorney-general 
and  solicitor-general  (Sir  John  Camp- 
bell and  Sir  Thomas  Wilde),  Sir 
Frederick  Pollock,  Mr.  Wightman,  Mr. 
Adolphus,  and  Mr.  Gurney  for  the 
Crown,  and  Mr.  Sydney  Taylor  and 
Mr.  Bodkin  for  the  prisoner.  Again, 
as  in  the  case  of  Hadfield,  the  defence 
set  up  was  that  of  insanity.      Oxford's 

563 


§  681.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


counsel  called  witnesses  to  prove  that 
Ms  grandfatlier  and  father  had  both 
heen  insane.  His  mother  was  a  prin- 
cipal witness,  and  testified  that  she 
had  married  the  would-be  regicide's 
father  because  he  had  threatened  self- 
destruction  if  she  should  refuse  ;  that 
while  she  was  enceinte  her  husband 
was  in  the  habit  of  terrifying  her  with 
hideous  grimaces  and  horrible  gesticu- 
lations, so  that  one  of  her  children 
was  born,  and  after  three  years  died, 
an  idiot.  As  to  the  prisoner,  she  de- 
posed that  he  had  always  been  an 
erratic,  Ticious  youth,  extravagantly 
vain  and  ambitious,  begging  as  a  boy 
to  be  sent  to  sea,  where  he  believed  he 
would  have  nothing  to  do  but  strut 
along  the  deck,  give  orders,  and  be- 
come Admiral  Sir  Edward  Oxford.  A 
short  time  previous  to  her  confinement 
with  the  prisoner,  as  she  further  made 
oath,  her  husband  had  pointed  a  gun 
at  her  head.  This  was  the  main  sub- 
stance of  the  evidence  in  support  of 
the  theory  of  insanity. 

"  On  the  other  hand,  the  Crown 
established  the  facts  that  the  prisoner 
had  purchased  the  pistols  some  days 
before  the  shooting,  and  had  practised 
with  them  upon  a  target ;  that  he  had 
never  at  any  time,  by  any  one,  been 
treated  as  insane,  and  that  the  attempt 
was  made  with  all  possible  method  and 
deliberation.  Five  doctors,  however, 
who  had  examined  Oxford  in  his  cell, 
testified  their  belief  that  he  was  insane. 
The  bench  instructed  the  jury  with  a 
heavy  leaning  against  this  medical 
testimony,  but,  after  an  hour's  de- 
liberation, they,  following  the  example 
of  their  predecessors  who  tried  Had- 
field,  brought  in  a  verdict  of  accxuittal 
on  the  ground  of  insanity.  Oxford 
was  thereupon  committed  to  Bedlam 
for  life. 

"The  next  attempt  on  the  life  of 
Queen  Victoria  was  made  on  the  30th 
of  May,  1S42,  by  John  Francis,  aged 

564 


twenty.  Francis  discharged  at  the 
queen  a  pistol  loaded  with  powder 
and  to  quote  the  language  of  the  in- 
dictment, '  certain  other  destructive 
materials  and  substances  unknown.' 
He  was  convicted,  and  sentence  of 
death  was  passed  upon  him  in  the  an- 
cient form  prescribed  for  prisoners  con- 
demned for  high  treason.  This  form 
is  curious  in  its  antique  barbarity,  and 
runs  as  follows  :  '  The  court  now  de- 
clares the  last  sentence  of  the  law, 
which  is  that  you,  John  Francis,  be 
taken  hence  to  the  place  whence  you 
came,  and  be  thence  drawn  on  a  hurdle 
to  the  place  of  execution  ;  and  that 
you  be  there  hanged  by  the  neck  until 
you  be  dead ;  and  that  afterwards  your 
head  shall  be  severed  from  your  body, 
and  your  body,  divided  into  four  quar- 
ters, shall  be  disposed  of  as  her  ma- 
jesty shall  think  fit.  And  may  God 
Almighty  have  mercy  on  your  soul.' 
It  is  perhaps  needles  to  say  that  no 
such  revolting  outrage  was  enacted 
upon  the  body  of  Francis.  In  defe- 
rence to  the  humane  wish  of  the 
queen  herself,  his  sentence  was,  in 
fact,  commuted  to  transportation  for 
life. 

"Within  five  weeks  from  the  date  of 
this  act  of  royal  clemency,  the  queen 
was  once  more  assailed  by  one  John 
William  Bean,  a  deformed  stripling, 
aged  seventeen.  On  Sunday,  the  3d 
of  July,  1842,  as  her  majesty  was  going 
to  the  chapel  royal.  Bean  presented  a 
pistol  at  her,  and  snapped  the  trigger, 
but  failed  to  discharge  the  weapon. 
He  was  promptly  seized,  and  on  the 
pistol  being  examined,  it  was  found  to 
be  loaded  only  with  powder,  wadding, 
and  minute  fragments  of  a  clay  pipe. 
Bean  was  tried  for  simple  misde- 
meanor ;  the  defence  of  insanity  .was 
not  offered  ;  and  he  was  sentenced  to 
eighteen  months'  imprisonment,  with 
hard  labor.  In  spite  of  the  burlesque 
character  of  this  assault,  the  national 


POLITICO-MANIA. 


[§  681. 


feeling  was  by  this  time  excited  to  a 
high  pitch  of  indignation  by  these  re- 
peated outrages,  and  the  result  was 
the  passing  of  the  act  of  parliament 
(5  and  6  Vict.,  chap.  51)  entitled  '  An 
act  for  providing  for  the  further  secu- 
rity and  protection  of  her  majesty's 
person.'  This  is  the  statute  to  which 
the  late  British  minister  at  Washing- 
ton, Sir  Edward  Thornton,  referred  in 
his  comments  upon  Guiteau's  crime, 
intimating  his  opinion  that  a  like  pro- 
vision of  law  woTild  have  a  salutary 
effect  in  this  country.  It  provides 
that  whoever  '  shall  discharge  or  at- 
tempt to  discharge,  or  point,  aim,  or 
present,  at  or  near  to  the  person  of  the 
queen,'  any  fire-arm,  whether  the 
same  shall  he  loaded  or  not,  or  shall 
'  strike  or  attempt  to  strike,  or  strike  at 
the  queen's  person  with  any  offensive 
weapon'  shall  be  guilty  of  a  high  mis- 
demeanor, and  be  '  liable,  at  the  dis- 
cretion of  the  court,  to  be  transported 
for  seven  years,  or  imprisoned,  with  or 
without  hard  labor,  for  any  period  not 
exceeding  three  years,  and  during 
such  imprisonment  to  be  publicly  or 
privately  whipped  as  often  and  in  such 
manner  and  form  as  the  court  shall 
direct,  not  exceeding  thrice.' 

"  It  was  the  whipping  clause  upon 
which  Sir  Edward  Thornton  laid  stress. 
It  seems  to  have  had  a  deterrent  in- 
fluence upon  British  Guiteaus,  as  for 
seven  years  after  its  enactment  the 
queen  was  not  again  molested." 

McNaughten's  case,  which  followed, 
has  been  abundantly  discussed  :  Mr. 
Drummond  was  shot  by  McNaughten 
in  mistake  for  Sir  Robert  Peel ;  the 
motive  of  the  assault  being  political 
disappointment.  McNaughten  was  ac- 
quitted on  the  ground  of  insanity,  the 
prosecution  offering  no  expert  testi- 
mony to  rebut  that  of  the  defence.  Of 
this  case  Dr.  Taylor,  in  his  work  on 
medical  jurisprudence,  thus  speaks  : — 

"When  we  find  a  man,  not  showing 


any  previous  intellectual  disturbance, 
lurking  for  many  days  in  a  particular 
locality;  having  about  him  a  loaded 
weapon  ;  watching  a  particular  person 
who  frequents  that  locality  ;  not  facing 
the  individual  and  shooting  him,  but 
coolly  waiting  until  he  has  an  oppor- 
tunity of  discharging  the  weapon  un- 
observed by  his  victim  or  others,  the 
circumstances  appear  to  show  such  a 
perfect  adaptation  of  means  to  ends, 
and  such  a  power  of  controlling  actions, 
that  it  is  difficult  to  understand  on 
what  principle  an  acquittal  on  the 
ground  of  insanity  could  have  been 
allowed.  I  refer  here  to  the  case  of  Mc- 
Naughten, tried  for  the  murder  of  Mr. 
Drummond,  January,  1843.  The  ac- 
quittal in  this  case  was  the  more  re- 
markable because  there  was  no  proof 
of  general  insanity,  and  the  crime  was 
committed  for  a  supposed  injury.  Ac- 
cording to  the  rules  laid  down  by  the 
fifteen  judges,  from  questions  sub- 
mitted to  them  in  connection  with  this 
case,  this  man  should  certainly  have  been 
convicted.'''' 

The  last  English  case  in  which  politico- 
mania  was  offered  as  a  defence  was  that 
of  Pate,  who  struck  Queen  Victoria, 
in  June,  1850,  on  the  face  with  a  whip. 
The  queen  was  uninjured  ;  Pate  was 
tried  in  July  of  the  same  year. 

"  Insanity  was  again  the  plea  relied 
upon.  It  was  proved  that  as  an  officer 
in  the  army,  his  behavior  had  been 
eccentric ;  that  on  one  occasion  he  had 
deserted,  but  had  been  allowed  to  re- 
join the  service  without  punishment, 
because  his  superior  officers  regarded 
him  as  in  an  unbalanced  state  of  mind  ; 
that  in  1842,  the  loss  of  three  fine 
horses  and  a  favorite  Newfoundland 
dog  had  thrown  him  into  a  morbid  and 
hysterical  condition,  and  that  ever 
since  he  had  acted  strangely.  A  cab- 
driver  was  called  to  the  witness-stand, 
who  deposed  that  every  day,  at  exactly 
a  quarter    past   three   o'clock    in    the 

565 


§  681.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 


afternoon,  for  many  years,  he  had  been 
hired  by  the  prisoner  to  drive  him 
over  Putney  Bridge  to  Putney  Heath  ; 
always  taking  the  same  route,  and 
stopping  at  the  same  spot.  This  and 
a  few  other  strange  habits  were  shown, 
and  upon  them  Mr.  Cockburn  built 
the  theory  of  '  uncontrollable  impulse.' 
In  summing  up  the  case  to  the  jury, 
Baron  Alderson,  addressing  himself  to 
this  plea  of  uncontrollable  impulse, 
said :  '  The  law  does  not  recognize 
such  an  impiilse.  If  a  person  was 
aware  that  it  was  a  wrong  act  he  was 
about  to  commit,  he  was  answerable 
for  the  consequences.  A  man  might 
say  that  he  picked  a  pocket  from  some 
uncontrollable  impulse ;  and  in  that 
case  the  law  would  have  an  uncon- 
trollable impulse  to  punish  him  for  it. ' 
Pate  was  convicted,  and  sentenced  to 
a  term  of  seven  years'  penal  servi- 
tude." 

In  U.  S.  V.  Gruiteau,  Sup.  Court, 
Dist.  of  Columbia,  December,  1881, 
and  January,  1882,  the  defendant  be- 
ing on  trial  for  the  murder  of  Presi- 
dent Garfield,  the  defence  was  in  part 
an  alleged  belief  of  the  defendant  that 
he  was  divinely  commissioned  to  kill 
the  president,  and  in  part  an  alleged 
conviction  that  the  death  of  the  presi- 
dent was  necessary  to  establish  a 
rightful  political  influence  in  the  coun- 
try. On  the  legal  questions  of  respon- 
sibility involved,  Judge  Cox  answered 
the  points  submitted  to  him  as  follows  : 

No.  1. 

"  The  legal  test  of  responsibility, 
where  insanity  is  set  up  as  a  defence 
for  alleged  crime,  is  whether  the  ac- 
cused, at  the  time  of  committing  the 
act  charged,  knew  the  difference  be- 
tween right  and  wrong,  in  respect  of 
such  act. 

"  Hence,  in  the  present  case,  if  the 
jury  find  that  the  accused  committed 
the  act  charged  in  the  indictment,  and, 

566 


at  the  time  of  its  commission,  he  knew 
what  he  was  doing,  and  that  what  he 
was  doing  was  contrary  to  the  law  of 
the  land,  he  is  responsible. 

"Unless,  in  consequence  of  insane 
mental  delusions,  or  other  form  of 
mental  disorder,  he  was  laboring 
under  such  a  defect  of  reason  as  to  be 
incapable  of  understanding  the  obliga- 
tion of  the  law  of  the  land,  and  the 
duty  and  necessity  of  obedience  to  it, 
and  of  understanding  that  his  act  was 
wrong  because  it  was  in  violation  of 
the  law  of  the  land. 

"  I  have  examined  the  other  instruc- 
tions, and  find  that  portions  of  them,_ 
as  they  are  drawn,  conflict  with  the 
views  I  have  already  expressed,  and 
other  portions  require  to  be  stated  with 
more  fulness. 

"And  I  shall  now  give  an  instruction 
which  is  marked  No.  2,  which  em- 
bodies all  I  think  is  correct  in  the  re- 
maining instruction  asked  on  the  part 
of  the  government,  and  in  the  first  four 
instructions  asked  on  the  part  of  the 
defence,  and  that  is  ; — 

No.  2. 

"  If  the  jury  find  that  the  defendant 
committed  the  act  charged,  and,  at  the 
time  thereof,  knew  what  he  was  doing, 
and  that  what  he  was  doing  was  con- 
trary to  the  law  of  the  land,  it  consti- 
tutes no  excuse,  even  if  it  were  true 
that  when  he  committed  the  act  he 
really  believed  that  he  was  producing 
a  great  public  benefit  and  that  the 
death  of  the  president  was  required  for 
the  good  of  the  American  people. 

"  Nor  would  such  excuse  be  afforded 
by  the  fact  that  in  the  commission  of 
the  act  he  was  controlled  by  a  de- 
praved moral  sense,  whether  innate  or 
acquired,  or  by  evil  passions,  or  in- 
difference to  moral  obligations. 

"And  even  if  the  jury  find  that  the 
defendant,  as  a  result  of  his  own  rea- 
soning  and   reflection,  arrived  at  the 


POLITICO-MANIA. 


[§  681. 


determination  to  kill  the  president, 
and  as  a  further  result  of  his  own  rea- 
soning and  reflection,  believed  that  his 
said  purpose  jvas  approved  or  suggested 
or  inspired  by  the  Deity,  such  belief 
would  afford  no  excuse. 

"But  it  would  be  diflerent  and  he 
would  not  be  responsible,  criminally, 
if  the  act  was  done  under  the  influence 
and  as  the  product  of  an  insane  mental 
delusion  that  the  Deity  had  commanded 
him  to  do  the  act,  which  had  taken 
possession  of  his  mind,  not  as  the  re- 
sult of  his  own  reflections,  but  inde- 
pendently of  his  will  and  reason,  and 
with  such  force  as  to  deprive  him  of 
the  degree  of  reason  necessary  to  dis- 
tinguish between  right  and  wrong,  as 
to  the  particular  act. 

"  In  such  case,  even  if  he  knew  that 
the  act  was  a  violation  of  the  law  of 
the  land,  he  would  not  be  responsible, 
if  his  reason  was  so  perverted  by  the 
insanity  that  he  was  incapable  of  un- 
derstanding the  obligation  of  the  law 
of  the  land,  and  that  the  act  was  wrong 
as  a  violation  of  that  law,  and  wrong  in 
itself. 

"In  this  connection  I  add  words 
'wrong  in  itself  because  I  can  con- 
ceive a  case  in  which  one  might  believe 
insanely  that  the  law  of  the  land  pro- 
vided no  punishment  for  murder,  and 
yet  might  be  perfectly  aware  of  the 
moral  enormity  of  the  crime.  I  would 
be  unwilling  to  pronounce  him  irre- 
sponsible-. 

"  I  have  omitted  from  this  instruction 
one  important  feature  of  those  asked 
for  on  the  part  of  the  defence.  It  is 
expressed  in  the  last  paragraph  of  the 
first  instrustion,  in  the  words,  '  or  was 
it  committed  under  an  influence  or 
power  which  the  accused  could  not  re- 
sist, by  reason  of  his  unsoundness  of 
mind.' 

"This,  I  presume,  seeks  to  leave  to 
the  jury  the  question  of  irresistible  im- 
pulse as  the  cause  of  the  homicide. 


"  Now,  it  cannot  be  denied  that  some 
of  the  most  respectable  courts  in  the 
country  recognize  it  as  possible  that  a 
man  may  be  driven  against  his  own 
will  to  the  commission  of  an  act  which 
he  knows  to  be  wrong,  by  an  insane, 
irresistible  impulse  within  him,  over- 
riding his  will  and  conscience  ;  and 
they  maintain  that  as,  under  such  cir- 
cumstances, the  will  to  do  wrong,  the 
very  essence  of  criminality,  is  wanting, 
he  ought  not  to  be  held  criminally  re- 
sponsible. 

"  They  accordingly  hold  that  the  test 
of  knowledge  of  right  and  wrong,  which 
I  have  stated  to  be  the  general  rule, 
ought  to  be  qualified  .by  the  further 
condition  that  the  party  must  have  the 
power  to  choose  between  doing,  and  not 
doing  the  act. 

"Other  courts,  on  the  contrary,  re- 
pudiate this  view  as  unsound  and 
dangerous. 

"The  question  is  a  dangerous  one 
alike  for  court  and  jury  to  handle  ; 
and  I  do  not  intend  to  express  an 
opinion  upon  it,  farther  than  the  facts 
of  the  case  require ;  and  they  seem  to 
me  to  relieve  me  from  the  necessity  and 
responsibility  of  discussing  it  gene- 
rally. 

"  If  we  strike  out  of  this  case  all  the 
declarations  and  testimony  of  the  de- 
fendant himself,  we  have  no  light 
whatever  on  this  subject ;  there  are 
circumstances,  such  as  his  actions  and 
conduct,  which  his  counsel  may  argue, 
of  themselves,  indicated  some  aberra- 
tion, and  are  corroborative  of,  and  ex- 
plained by  his  testimony  ;  but,  of  them- 
selves, they  would  have  afi"orded  no 
indication  of  the  particular  motive  or 
special  form  of  delusion  that  actuated 
him.  Of  this  we  have  no  indication, 
except  in  the  declarations,  oral  or 
written,  of  the  defendant  himself.  But, 
he  has  never  claimed  that  he  was  irre- 
sistibly impelled  to  do  an  act  wliicli  he 
knew  to  be  wrong.     On  the  contrary, 

567 


§  681.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 


he  has  always  claimed  that  it  was 
right.  He  justified  it  at  the  time  and 
afterwards,  in  his  papers,  as  a  political 
necessity  and  an  act  of  patriotism. 
And  whether  he  claimed  inspiration 
early  or  late,  he  has  claimed  that  it 
was  inspired,  and  therefore  right.  He 
has  used  the  words  pi-esswe  and  inspira- 
tion interchangeably,  as  it  were,  to  ex- 
press the  idea.  This  has  no  meaning, 
unless  it  be  that  he  was  under  an  in- 
sane delusion  that  the  Deity  had  in- 
spired or  commanded  the  act.  He  has 
certainly  not  separated  the  idea  of 
pressure  or  impulse  from  the  convic- 
tion of  inspiration  and  right  and  duty. 
He  has  not  assejted  any  form  of  insan- 
ity which  did  not  involve  a  conviction 
of  right  to  do  the  act. 

'  'And  I  feel  sure  that  I  am  not  trans- 
cending the  province  of  the  court,  when 
I  say  that  there  is  no  evidence  in  the 
case  tending  to  prove  any  irresistible 
impulse  as  a  thing  by  itself,  and  sepa- 
rate from  this  alleged  delusion. 

"  Therefore  the  case  does  not  seem  to 
me  to  present,  or  call  for  any  ruling 
on,  the  hypothesis  of  an  irresistible  im- 
pulse to  do  what  the  accused  knezv  to  be 
wrong,  and  what  was  against  his  will. 

"  Whether  there  is  such  a  thing  as 
irresistible  insane  impulse  to  commit 
crime,  and  whether  it  has  existed  in 
any  particular  ease,  are  questions  of 
fact  and  not  of  law. 

"In  this  case,  I  think  there  is  no  tes- 
timony showing  that  it  can  exist  by 
itself,  as  an  independent  form  of  in- 
sanity, but  rather  the  contrary.  There 
is,  however,  testimony  tending  to  show 
that  such  impulses  result  from  and  are 
associated  with  insane  delusions  and 
especially  with  such  an  insane  delu- 
sion as  that  the  party  has  received  a 
command  from  the  Deity  to  do  an  act. 
But  if  such  an  insane  delusion  exists, 
so  as  to  destroy  the  perceptions  of  right 
and  wrong  as  to  the  act,  which  is  sub- 
stantially the  defendant's  claim,  this 

568 


of  itself  is  irresponsible  insanity,  and 
there  is  no  need  to  consider  the  sub- 
ject of  impulses  resulting  from  the  de- 
lusion. 

"  On  the  other  hand,  if  there  was  no 
insanity,  but  a  mere  fanatical  opinion 
or  belief,  such  as  before  described,  the 
only  impulse  that  could  have  actuated 
the  defendant  must  have  been  a  sane 
one,  such  as,  in  the  most  favorable 
view  of  it,  a  mistaken  and  fanatical 
sense  of  duty,  which  the  law  requires 
him  to  resist  and  control. 

' '  In  connection  with  the  medical  testi- 
mony tending  to  show  that  these  im- 
pulses are  always  or  generally  asso- 
ciated with  some  insane  delusion,  if 
there  are  facts  tending  directly  to  show 
the  presence  or  absence  of  an  irresisti- 
ble impulse,  they  may  perhaps  furnish 
some  evidence  of  the  existence  or  ab- 
sence of  insane  delusion. 

"  But  I  think,  in  view  of  the  undis- 
puted features  of  the  case,  it  would 
only  confuse  and  perhaps  mislead  the 
jury  to  give  them  any  instruction  di- 
rectly upon  the  subject  of  irresistible 
impulse,  and  that  this  particular  case 
does  not  call  for  any  qualification  of 
the  general  rule  adopted,  as  I  have 
mentioned,  as  the  test  of  responsi- 
bility. 

"  I  have  already  stated  that  the  fifth 
and  sixth  and  eighth  prayers  are  ob- 
noxious to  the  suspicion  that  tliey  em- 
bodied the  doctrine  of  the  New  Hamp- 
shire court,  and  that  is  if  the  jury  find 
insanity  in  general  terms,  and  find  that 
the  act  was  the  result  of  that  insanity, 
they  ought  to  acquit.  For  tliat  reason 
I  decline  to  grant  them. 

"  The  seventh  instruction  is — 

"  The  punishments  of  the  law  are  in- 
tended for  rational  persons,  and  no  one 
but  a  rational  person  can  commit  the 
crime  of  murder. 

"  That  is  somewhat  objectionable  be- 
cause  it    is   vague,    and    for    another 

reason,  and  that  it  is  simplj'  the  an- 


POLITICO-MANIA. 


[§  681. 


nouncement  of  an  abstract  proposi- 
tion, although,  in  ordinary  parlance, 
the  statement  is  correct. 

"  We  now  come  to  the  ninth. 

"  If  the  jury  have  a  reasonable  doubt 
as  to  the  sanity  of  the  accused,  at  the 
time  of  committing  the  act  charged 
against  him  as  a  crime,  they  should 
give  him  the  benefit  of  that  doubt,  and 
should  find  him  '  not  guilty  by  reason 
of  insanity.' 

"  There  is  perhaps  a  formal  objection 
to  this  prayer,  because  it  virtually 
requires  the  jury  to  find  the  fact  of  in- 
sanity upon  a  mere  doubt  of  sanity. 

"  In  reference  to  the  question  on  whom 
rests  the  burden  of  proof  when  insanity 
is  relied  on  as  a  defence,  three  different 
and  conflicting  views  have  been  held 
by  diiferent  courts.  According  to  one 
view  it  is  incumbent  on  the  accused  to 
establish  the  fact  of  his  insanity  at  the 
time  of  the  commission  of  the  alleged 
crime,  by  evidence  so  conclusive  as  to 
exclude  all  reasonable  doubt  of  it.  But 
this  view  derives  so  little  support 
from  authority  that  it  may  be  passed 
over  without  comment,  as  inadmissible. 

"Another  view  is  that  the  defence  of 
insanity  is  an  affirmative  one,  which 
the  party  asserting  it  must  establish 
to  the  satisfaction  of  the  jury  by,  at 
least,  a  preponderance  of  evidence. 
That  is  to  say,  the  evidence  in  favor  of 
it  need  not  be  so  conclusive  as  to  leave 
no  room  for  reasonable  doubt,  but  it 
must  liave  more  weight  with  the  jury 
than  the  evidence  against  it,  so  that 
they  would  feel  justified  in  finding  the 
fact  as  they  would  find  any  fact  in  a 
civil  suit,  in  which  all  questions  of  fact 
are  decided  according  to  the  weight  of 
the  evidence. 

"Still  another  view  is  that  the  sanity 
of  the  accused  is  just  as  much  a  part 
of  the  case  of  the  prosecution  as  the 
homicide  itself,  and  just  as  much  an 
element  in  the  crime  of  murder,  the 
only  difi'erence  being  that,  as  the  law 


presumes  every  one  to  be  sane,  it  is  not 
necessary  for  the  government  to  pro- 
duce affirmative  proof  of  the  sanity ; 
but  that  if  the  jury  have  a  reasonable 
doubt  of  the  sanity,  they  are  just  as 
much  bound  to  acquit  as  if  they  enter- 
tain a  reasonable  doubt  of  the  com- 
mission of  the  homicide  by  the  ac- 
cused. 

"  The  only  question  is  as  between  the 
second  and  third  of  these  rules.  I 
have  examined  all  the  authorities  on 
the  subject  with  great  care,  and  over 
and  over  again,  and  with  a  painful 
anxiety  to  be  right.  The  cases  which 
are  referred  to  in  support  of  the  second 
rule  are  undoubtedly  more  numerous 
than  the  others.  Some  of  those,  how- 
ever, turn  upon  statutory  definitions  of 
the  crime  of  murder.  For  example, 
the  statute  of  Massachusetts,  in  its  de- 
finition of  murder,  omits  the  element  of 
'  sound  memory  and  discretion'  in  the 
perpetrator,  so  that  the  defence  of  in- 
sanity there  is  essentially  a  defence  by 
way  of  confession  and  avoidance,  and 
therefore  it  is  held  by  that  court  that 
the  defendant  must  establish  it  by  pre- 
ponderance of  proof.  A  great  many  of 
the  cases  referred  to  are  mere  dicta, 
and  some  of  them  involve  plain  contra- 
diction, and  there  is  not  one  which  I 
have  examined  which  has  the  least 
show  of  argument.  The  opinions 
which  support  the  last  view  are  de- 
cidedly entitled,  in  my  judgment,  to 
the  most  confidence.  They  are  rea- 
soned out  from  first  principles,  and  the 
reasoning  has  been  unanswered,  and, 
in  my  judgment,  is  unanswerable.  The 
practice  in  this  court  has  always  been 
to  give  an  instruction  somewhat  in  the 
terms  here  claimed.  Besides  those 
already  referred  to,  there  is  the  case 
of  Stone,  the  most  recent  one,  in  which 
the  instruction  given  was  as  follows  : — 

"Sixth.  In  a  capital  case  the  defence 
of  insanity  is  required  to  be  made  out 

569 


§  681.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


hy  strong,  clear,  and  convincing  proof, 
and  in  this  case  the  jury  must  judge  of 
the  evidence  offered  to  sustain  this  de- 
fence, and  of  its  effect  upon  the  main 
issue  of  guilty  or  not  guilty ;  and  if, 
upon  consideration  of  all  the  evidence 
in  connection  with  the  presumption 
that  what  a  man  does  is  sanely  done, 
they  entertain  a  reasonable  doubt  ivhether 
the  prisoner  committed  the  homicide,  as 
charged  in  the  indictment,  or  ivhether  at 
the  time  of  its  commission  he  icas  in  a  sane 
state  of  mind,  they  should  acquit  him, 
otherwise  they  should  convict. 

"  I  shall,  however,  adopt  the  sugges- 
tion which  I  find  in  some  of  the  latest 
authorities,  and  that  is  not  to  instruct 
the  jury  to  acquit  if  they  feel  a  reason- 
able doubt  about  any  one  fact  involved 
in  the  issue,  but  I  shall  instruct  them 
as  to  the  nature  of  this  crime,  and  all 
the  elements  composing  it,  including  a 
responsible  sane  mind  in  the  perpetra- 
tor. I  shall  instruct  them  as  to  the 
presumptions  of  innocence  and  sanity, 
and  finally,  that,  upon  the  considera- 
tion of  both  these  presumptions,  if  they 
then  feel  a  reasonable  doubt  as  to  the 
guilt  of  the  accused  of  the  crime  as  so 
explained,  the  prisoner  is  entitled  to 
an  acquittal. 

' '  The  tenth  and  eleventh  instructions 
do  not  involve  any  serious  questions. 
The  eleventh  instruction  asks  me  to 
say  that — 

"  If  the  jury  believe  from  the  evidence 
that  the  prosecution  have  wilfully  sup- 
pressed evidence  of  the  mental  condi- 
tion of  the  accused  during  two  weeks 
next  following  the  shooting  of  Presi- 
dent Garfield,  which  it  was  in  their 
power  to  have  produced  on  the  trial, 
the  jury  have  a  right  to  take  that  fact 
into  consideration  as  raising  a  pre- 
sumption that  such  evidence,  if  pro- 
duced, would  have  been  unfavorable 
for  the  prosecution. 

"  Now,  every  instruction  ought  to  be 
based  upon  some  evidence  in  the  case, 
and  in  giving  this  I  should  have  to 
assume  that  there  is  some  evidence  of 

.570 


this  wilful  suppression,   which   I   am 
unwilling  to  do. 

"  It  is  always  open  to  either  side  to 
argue  that  evidence  which  has  not 
been  produced,  but  could  have  been, 
produced,  would  have  been  injurious 
to  the  party  who  had  possession  of  it ; 
that  is  fair  matter  of  argument  to  the 
jury  in  every  case  on  both  sides.  In 
like  manner,  it  is  fair  argument  to  the 
jury  that  the  witnesses  were  interested 
or  influenced  by  hope  of  compensation, 
and  the  ordinary  motives  that  would 
induce  men  to  swear  falsely  or  to  pre- 
varicate. But  I  do  not  think  the  court 
ought  to  give  formal  instruction  in  the 
shape  of  either  the  tenth  or  eleventh 
of  these  prayers.  I  refuse  them,  how- 
ever, after  the  explanation  that  I  have 
already  given,  that  it  is  open  to  coun- 
sel to  comment  upon  the  testimony  of 
the  witnesses  and  upon  the  conduct  of 
the  prosecution. 

"The  twelfth  instruction  is  drawn 
with  reference  to  section  5241,  United 
States  revised  statutes.  I  do  not  under- 
stand that  statute  to  create  any  new 
species  of  manslaughter.  It  uses  the 
common  law  definitions  of  both  murder 
and  manslaughter,  and,  perhaps,  in 
view  of  the  doubts  that  I  have  already 
spoken  of,  applies  them  to  cases  where 
the  mortal  wound  was  inflicted  in  one 
jurisdiction  and  the  death  occurred  in 
another. 

' '  The  terms  malice  and  maliciously  used 
in  the  statute  would  have  no  meaning 
except  by  reference  to  the  common  law. 
Now  we  know  that  the  term  'malice,' 
in  the  definition  of  murder,  does  not 
require  that  proof  shall  be  given  of 
any  special  hatred  or  ill  will  to  the 
deceased,  but  the  deliberate  intent  to 
kill,  from  whatever  motive,  constitutes 
all  the  malice  that  the  law  requires  to 
be  shown  ;  and  that  the  terms  '  with- 
out malice,'  in  the  definition  of  man- 


POLITICO-MANIA. 


[§  681, 


slaughter,  mean  simply  without  pre- 
meditated intent,  as  where  the  killing 
occurs  in  the  heat  of  passion  or  on 
sudden  quarrel. 

"All  this  I  will  explain  to  the  jury- 
when  it  becomes  necessary  to  charge 
them ;  hut  the  instruction  which  is 
asked,  in  its  use  of  the  terms  '  with- 
out malice  in  fact,'  might  convey  the 
idea  to  the  jury  that  if  the  killing  was 
done  from  the  motives  declared  by  the 
prisoner,  and  he  had,  as  he  says,  no 
personal  ill  will  towards  the  president, 
it  was  not  murder.  It  is  objectionable 
on  this  ground,  and  every  object  that 
could  be  properly  sought  under  this 
head  will  be  attained  by  the  explana- 
tions which  I  have  indicated  to  be  made 
to  the  jury. 

' '  This  disposes  of  all  the  instruc- 
tions." 

From  the  charge,  as  subsequently 
delivered,  the  following  extracts  are 
taken  :— 

"  The  cases  I  have  referred  to  fur- 
nish an  introduction  to  the  subject  of 
insane  delusions,  which  plays  an  im- 
portant part  in  this  case  and  demands 
careful  consideration.  We  find  it 
treated,  to  a  limited  extent,  in  judicial 
decisions,  but  learn  more  about  it  from 
works  on  medical  jurisprudence  and 
expert  testimony.  Sane  people  are 
said  sometimes  to  have  delusions,  pro- 
ceeding from  temporary  disorder  and 
deception  of  the  senses,  and  they  enter- 
tain extreme  opinions  which  are 
founded  upon  insufficient  evidence  or 
result  from  ignorance,  or  they  are 
speculations  on  matters  beyond  the 
scope  of  human  knowledge  ;  but  they 
are  always  susceptible  of  being  cor- 
rected and  removed  by  evidence  and 
argument. 

"  But  the  insane  delusion,  according 
to  all  testimony,  seems  to  be  an  un- 
reasoning and  incorrigible  belief  in  the 
existence  of  facts  which  are  either  im- 
possible  absolutely,   or,   at  least,   im- 


possible under  the  circumstances  of  the 
individual.  A  man,  with  no  reason 
for  it,  believes  that  another  is  attempt- 
ing his  life,  or  that  he  himself  is  the 
owner  of  untold  wealth,  or  that  he  has 
invented  something  which  will  revo- 
lutionize the  world,  or  that  he  is  pres- 
ident of  the  United  States,  or  that  he 
is  God  or  Christ,  or  that  he  is  dead,  or 
that  he  is  immortal,  or  that  he  has  a 
glass  arm,  or  that  he  is  pursued  by 
enemies,  or  that  he  is  inspired  by  God 
to  do  something. 

"  In  most  cases,  as  I  understand  it, 
the  fact  believed  is  something  affecting 
the  senses.  It  may  also  concern  the 
relations  of  the  party  with  others.  But 
generally  the  delusion  centres  around 
himself,  his  cares,  sufferings,  rights, 
and  wrongs.  It  comes  and  goes  inde- 
pendently of  the  exercise  of  will  and 
reason,  like  the  phantasms  of  dreams. 
It  is,  in  fact,  the  waking  dream  of  the 
insane,  in  which  facts  present  them- 
selves to  the  mind  as  real,  just  as  ob- 
jects do  to  the  distempered  vision  in 
delirium  tremens. 

"  The  important  thing  is  that  an  in- 
sane delusion  is  never  the  result  of 
reasoning  and  reflection.  It  is  not 
generated  by  them,  and  it  cannot  be 
dispelled  by  them. 

"A  man  may  reason  himself,  and  be 
reasoned  by  others,  into  absurd  opin- 
ions, and  may  be  persuaded  into  im- 
practicable schemes  and  vicious  resolu- 
tions, but  he  cannot  be  reasoned  or 
persuaded  into  insanity  or  insane  de- 
lusions. 

"  Whenever  convictions  are  founded 
on  evidence,  on  comparison  of  facts 
and  opinions  and  arguments,  they  are 
not  insane  delusions. 

"  The  insane  delusion  does  not  relate 
to  mere  sentiments  or  theories  or  ab- 
stract questions  in  law,  politics,  or  re- 
ligion. All  these  are  the  subjects  of 
opinions,  which  are  beliefs  founded  on 
reasoning  and  reflection.     These  opin- 

571 


§  681.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLY. 


ions  are  often  absurd  in  the  extreme. 
Men  'believe  in  animal  magnetism, 
spiritualism,  and  other  like  matters, 
to  a  degree  that  seems  unreason  itself, 
to  most  other  people  And  there  is  no 
absurdity  in  relation  to  religious,  polit- 
ical, and  social  questions  that  has  not 
its  sincere  supporters. 

"These  oxDiuious  result  from  natu- 
rally weak  or  ill-trained  reasoning 
powers,  hasty  conclusions  from  insuffi- 
cient data,  ignorance  of  men  and  things, 
crediilous  dispositions,  fraudulent  im- 
posture, and  often  from  perverted  moral 
sentiments.  But  still  they  are  opinions, 
founded  upon  some  kind  of  evidence, 
and  liable  to  be  changed  by  better  ex- 
ternal evidence  or  sounder  reasoning. 
But  they  are  not  insane  delusions. 

' '  Let  me  illustrate  further  : — 

"A  man  talks  to  you  so  strongly 
about  his  intercourse  with  departed 
spirits  that  you  suspect  insanity.  You 
find,  however,  that  he  has  witnessed 
singular  manifestations,  that  his  senses 
have  been  addressed  by  sights  and 
sounds,  which  he  has  investigated, 
reflected  on,  and  been  unable  to  ac- 
count for,  except  as  supernatural. 
You  see  at  once  that  there  is  no  in- 
sanity here  ;  that  his  reason  has  drawn 
a  conclusion  from  evidence. 

"The  same  man,  on  farther  investi- 
gation of  the  phenomena  that  staggered 
him,  discovers  that  it  is  all  an  impos- 
ture, and  surrenders  his  belief. 

"Another  man,  whom  you  know  to 
be  an  affectionate  father,  insists  that 
the  Almighty  has  appeared  to  him  and 
commanded  him  to  sacrifice  his  child. 
No  reasoning  has  convinced  him  of  his 
duty  to  do  it,  but  the  command  is  as 
real  to  him  as  my  voice  is  now  to  you. 
No  reasoning  or  remonstrance  can 
shake  his  conviction  or  deter  him  from 
his  purpose.  This  is  an  insane  delu- 
sion, the  coinage  of  a  diseased  brain, 
as   seems   to   be    generally   supposed, 

572 


which  defies  reason  and  ridicule,  which 
palsies  the  reason,  blindfolds  the  con- 
science, and  throws  into  disorder  all 
the  springs  of  human  action. 

"Before  asking  you  to  apply  these 
considerations  to  the  facts  of  this  case 
let  me  premise  one  or  two  things. 

"The  question  for  you  to  determine 
is.  What  was  the  condition  of  the 
prisoner's  mind  at  the  time  when  this 
tragedy  was  enacted  ?  If  he  was  suffi- 
ciently sane  then  to  be  responsible,  it 
matters  not  what  may  have  been  his 
condition  before  or  after.  Still  evi- 
dence is  properly  admitted  as  to  his 
previous  and  subsequent  conditions, 
because  it  throws  light,  prospectively 
and  retrospectively,  upon  his  condition 
at  the  time.  Inasmuch  as  these  dis- 
orders are  of  gradual  growth  and  in- 
definite continuance,  if  he  is  shown 
insane  shortly  before  or  after  the  com- 
mission of  the  crime,  it  is  natural  to 
conjecture,  at  least,  that  he  was  so  at 
the  time.  But  all  the  evidence  must 
centre  around  the  time  when  the  deed 
was  done. 

"You  have  heard  a  good  deal  of  evi- 
dence respecting  the  peculiarities  of 
the  prisoner  through  a  long  period  of 
time  before  this  occurrence,  and  it  is 
claimed  that  he  was,  during  all  that 
time,  subject  to  delusions  calculated 
to  disturb  his  reason  and  throw  it 
from  its  balance.  I  only  desire  to  say 
here  that  the  only  materiality  of  that 
evidence  is  in  the  probability  it  may 
afi"ord  of  the  defendant's  liability  to 
such  disorder  of  the  mind,  and  the  cor- 
roboration it  may  yield  to  other  evi- 
dence which  may  tend  directly  to  show 
such  disorder  at  the  time  of  the  com- 
mission of  the  crime. 

"  A  few  words  may  assist  you  in  ap- 
plying to  the  evidence  what  I  have 
thus  stated. 

"  You  are  to  determine  whether,  at 
the  time  when  the  homicide  was  com- 


POLITICO-MANIA. 


[§  681. 


mitted,  the  defendant  was  laboring 
under  any  insane  delusion  prompting 
and  impelling  him  to  the  deed. 

"Very  naturally  you  look,  first,  for 
any  explanation  of  the  act,  which  may 
have  been  made  by  the  defendant  him- 
self at  the  time  or  immediately  before 
and  after. 

"  You  have  had  laid  before  you,  es- 
pecially, several  papers  which  were  in 
his  possession,  and  which  purport  to 
assign  the  motives  for  his  deed. 

"In  the  address  to  the  American 
people,  of  June  16,  which  seems  most 
fully  to  set  forth  his  views,  he  says, 
'  I  conceived  the  idea  of  removing  the 
president  four  weeks  ago.  Not  a  soul 
knew  of  my  purpose.  /  conceived  the 
idea  myself,  and  kept  it  to  myself.  I 
read  the  newspapers  carefully,  for  and 
against  the  Administration,  and  grad- 
ually the  conviction  daivned  Qn  me  that  the 
president's  removal  was  apolitical  neces- 
sity, because  he  proved  a  traitor  to  the 
men  that  made  him,  and  thereby  im- 
periled the  life  of  the  republic'  Again, 
'  Ingratitude  is  the  basest  of  crimes. 
That  the  president,  under  the  manipu- 
lation of  his  secretary  of  state,  has 
been  guilty  of  the  basest  ingratitude  to 
the  Stalwarts,  admits  of  no  denial.  The 
expressed  purpose  of  the  president  has 
been  to  crush  General  Grant  and  Sena- 
tor Conkling,  and  thereby  open  the  way 
for  his  renomination  in  1884.  In  the 
president's  madness  he  has  wrecked 
the  once  grand  old  Republican  party, 
and  for  this  he  dies.^  .  .  Again, 
'  This  is  not  murder.  It  is  a  political 
necessity.  It  will  make  my  friend 
Arthur  president,  and  save  the  repub- 
lic,' etc.  The  other  papers  are  of  simi- 
lar tenor,  as  I  think  you  will  find. 

"There  is  evidence  that,  when  ar- 
rested, the  prisoner  refused  to  talk, 
but  said  that  the  papers  would  explain 
all. 

"  On  the  night  of  the  assassination. 


according  to  the  witness  James  J. 
Brooks,  the  prisoner  said  to  him,  that 
he  had  thought  over  it  and  prayed  over 
it  for  weeks,  and  the  more  he  thought 
and  prayed  over  it  the  more  satisfied 
he  was  that  he  had  to  do  this  thing. 
He  had  made  up  his  mind  that  he  had  done 
it  as  a  matter  of  duty,  .  .  he  made  up 
his  mind  that  they  (the  president  and 
Mr.  Blaine)  were  conspiring  against 
the  liberties  of  the  people,  and  that  the 
president  must  die. 

"  This  is  all  that  the  evidence  shows 
as  to  the  prisoner's  utterances  aboiit 
the  time  of  the  shooting. 

"In  addition  to  this,  you  have  the 
very  important  testimony  of  the  wit- 
ness Joseph  S.  Reynolds,  as  to  the 
prisoner's  statements,  oral  and  written, 
made  about  a  fortnight  after  the  shoot- 
ing. If  you  credit  this  testimony,  you 
find  him  reiterating  the  statements 
contained  in  the  other  papers,  but  per- 
haps with  more  emphasis  and  clearness. 
He  is  represented  as  saying  that  the  situ- 
ation at  Albany  suggested  the  removal  of  the 
president,  and  as  the  factional  fight  be- 
came more  bitter,  he  became  more  de- 
cided. He  knew  that  Arthur  would 
become  president,  and  that  would  help 
Conkling,  etc.  If  he  had  not  seen  that 
the  president  was  doing  a  great  wrong  to 
the  Stalwarts,  he  would  not  have  assassi- 
nated him. 

' '  In  the  address  to  the  American 
people,  then  written,  he  says,  '  /  now 
wish  to  state  distinctly  why  I  attempted  to 
remove  the  president.  I  had  read  the 
newspapers ybr  and  against  the  Admin- 
istration, very  carefully,  for  two 
months,  before  I  conceived  the  idea  of 
removing  him.  Gradually,  as  the  restdt 
of  reading  the  neiuspapers,  the  idea  set- 
tled on  me,  that  if  the  president  was 
removed,  it  would  unite  the  two  fac- 
tions of  the  Republican  party  and  there- 
by save  the  government  from  going  into 
the  hands  of  the  ex-rebels   and  their 

573 


§  681.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


northern  allies.'  ^  It  was  my  own  con- 
ception, and  whether  right  or  wrong,  I  take 
the  entire  responsibility,'' 

"  A  second  paper,  dated  July  19th, 
addressed  to  the  public,  reiterates  this 
and  concludes,  '  Whether  he  lives  or 
dies,  I  have  got  the  inspiration  worked 
out  of  me.' 

"  We  have  now  before  us  everything 
emanating  from  the  prisoner  about  the 
time  of  the  shooting  and  within  a  little 
over  a  fortnight  afterwards.  We  have 
nothing  further  from  him  until  over 
three  months  afterwards.  Let  us  pause 
here  to  consider  the  import  of  all  this. 

"You  are  to  consider,  first,  whether 
this  evidence  fairly  represents  the  true 
feelings  and  ideas  which  governed  the 
prisoner  at  the  time  of  the  shooting. 
If  it  does,  it  represents  a  state  of  things 
which  I  have  not  seen  characterized  in 
any  judicial  utterance  or  authoritative 
work  as  an  insane  delusion. 

"  You  are  to  consider  whether  it  is 
so  described  in  the  evidence,  or  does 
not,  on  the  contrary,  show  a  deliberate 
process  of  reasoning  and  reflection, 
upon  argument  and  evidence  for  and 
against,  resulting  in  an  o/wu"on  that  the 
president  had  betrayed  his  party,  and 
that  if  he  were  out  of  the  way  it  would 
be  a  benefit  to  his  party  and  save  the 
country  from  the  predominance  of  their 
political  opponents.  So  far  there  was 
nothing  insane  in  tlie  conclusion.  It 
was  doubtless  shared  by  a  great  many 
others.  But  the  difference  was  that 
the  prisoner,  according  to  his  revela- 
tions, went  a  step  farther,  and  reached 
the  conviction  that  to  put  the  president 
out  of  the  way  by  assassination  was  a 
political  necessity. 

' '  When  men  reason  the  law  requires 
■  them  to  reason  correctly,  as  far  as  their 
practical  duties  are  concerned.  When 
they  have  the  capacity  to  distinguish 
between  right  and  wrong,  they  are 
bound  to  do  it.  Opinions,  properly  so 
called — i.  e.,  beliefs  resulting  from  rea- 

574 


soning,  reflection,  or  examination  of 
evidence — afi'ord  no  protection  against 
the  penal  consequences  of  crime.  A 
man  may  believe  a  course  of  action  to 
be  right,  and  the  law,  which  forbids  it, 
to  be  wrong.  Nevertheless  he  must 
obey  the  law,  notwithstanding  his  con- 
victions. And  nothing  can  save  him 
from  the  consequences  of  its  violation 
except  the  fact  that  he  is  so  crazed  by 
disease  as  to  be  unable  to  comprehend 
the  necessity  of  obedience  to  it, 

"  The  Mormon  prophets  profess  to 
be  inspired,  and  to  believe  in  the  duty 
of  plural  marriages,  although  it  was 
forbidden  by  a  law  of  the  United  States. 
One  of  the  sect  violated  the  law,  and 
was  indicted  for  it.  The  judge  who 
tried  him  instructed  the  jury — 

"That  if  the  defendant,  under  the 
influence  of  a  religious  belief  that  it 
was  right — under  an  inspiration,  if 
you  please,  that  it  was  right — deliber- 
ately married  the  second  time,  having 
a  first  wife  living,  the  want  of  con- 
sciousness of  evil  intent,  the  want  of 
understanding  that  he  was  committing 
a  crime,  did  not  excuse  him. 

"And  the  supreme  court  of  the 
United  States,  to  which  the  case  went, 
under  the  title  of  '  Reynolds  v.  United 
States'  (98  U.  S.  145),  in  approving 
this  ruling,  said  : — 

"Laws  are  made  for  the  government 
of  actions,  and  while  they  cannot  in- 
terfere with  mere  religious  belief  and 
opinions,  they  may  with  practices. 
Suppose  one  believed  that  human  sac- 
rifices were  a  necessary  part  of  religious 
worship,  would  it  be  seriously  con- 
tended that  the  civil  government  under 
which  he  lived  could  not  interfere  to 
prevent  a  sacrifice  ?  Or  if  a  wife  re- 
ligiously believed  it  was  her  duty  to 
burn  herself  upon  the  funeral  pile  of 
her  dead  husband,  would  it  be  beyond 
the  power  of  the  civil  government  to 
prevent  her  carrying  her  belief  into 
practice  ? 

"So  here,  as  a  law  of  the  organiza- 
tion of  society,  under  the  exclusive 
dominioii  of  the  United  States,  it  is 
provided  that  plural  marriages  shall 
not  be  allowed,  can  a  man  excuse  his 


POLITICO-MANIA. 


[§  681. 


practice  to  the  contrary  because  of  his 
religious  belief?  To  permit  this  would 
be  to  make  the  professed  doctrines  of 
religious  belief  superior  to  the  law  of 
the  land,  and,  in  effect,  to  permit  every 
citizen  to  become  a  law  unto  himself. 
Government  could  exist  only  in  name, 
under  such  circumstances. 

"And  so,  in  like  manner  I  say,  a 
man  may  reason  himself  into  a  convic- 
tion of  the  expediency  and  patriotic 
character  of  political  assassination,  but 
to  allow  him  to  find  shelter  from  punish- 
ment behind  that  belief,  as  an  insane 
delusion,  would  be  simply  monstrous. 

"Between  one  and  two  centuries 
ago,  there  arose  a  school  of  moralists 
who  were  accused  of  maintaining  the 
doctrine  that  whenever  an  end  to  be 
attained  is  right,  any  means  neces- 
sary to  attain  it  would  be  justifiable. 
They  were  accused  of  practising  such  a 
process  of  reasoning  as  would  justify 
every  sin  in  the  decalogue  when  occa- 
sion required  it.  They  incurred  the 
odium  of  nearly  all  Christendom  in 
consequence.  But  the  mode  of  reason- 
ing attributed  1o  them  would  seem  to 
be  impliedly,  if  not  expressly,  repro- 
duced in  the  papers  written  by  the  de- 
fendant and  shown  in  evidence  : — 

"  It  would  be  a  right  and  patriotic 
thing  to  unite  the  Republican  party 
and  save  the  republic.  Whatever 
means  may  be  necessary  for  that  ob- 
ject would  be  justifiable.  The  death 
of  the  president  by  violence  is  the  only 
and  therefore  the  necessary  means  of 
accomplishing  it,  and  therefore  it  is 
justifiable.  Being  justifiable  as  a  po- 
litical necessity,  it  is  not  murder. 

"  Such  seems  to  be  the  substance  of 
the  ideas  which  he  puts  forth  to  the 
world  as  his  justification  in  these  pa- 
pers. If  this  is  the  whole  of  his  posi- 
tion, it  presents  one  of  those  vagaries  of 
opinion  for  which  the  law  has  no  toler- 
ation and  which  furnishes  no  excuse 
whatever  for  crime. 

"This,  however,  is  not  all  that  the 
defendant  now  claims. 


"There  is,  undoubtedly,  a  form  of 
insane  delusion,  consisting  of  a  belief  by 
a  person  that  he  is  inspired  by  the 
Almighty  to  do  something ;  to  kill 
another,  for  example,  and  this  delu- 
sion may  be  so  strong  as  to  impel  him 
to  the  commission  of  a  crime. 

"  The  defendant,  in  this  case,  claims 
that  he  labored  under  such  a  delusion 
and  impulse,  or  pressure,  as  he  calls 
it,  at  the  time  of  the  assassination. 

"The  prisoner's  unsworn  declara- 
tions, since  the  assassination,  on  this 
subject,  in  his  own  favor,  are,  of 
course,  not  evidence,  and  are  not  to  be 
considered  by  you.  A  man's  language, 
when  sincere,  may  be  evidemce  of  the 
condition  of  his  mind  when  it  is  uttered, 
but  it  is  not  evidence  in  his  favor  of 
the  facts  declared  by  him,  or  as  to  his 
previous  acts  or  condition.  He  can 
never  manufacture  evidence  in  this 
way  in  his  own  exoneration. 

"It  is  true  that  the  law  allows  a 
prisoner  to  testify  in  his  own  behalf, 
and  thereby  makes  his  sworn  testimony 
on  the  witness-stand  legal  evidence, 
to  be  received  and  considered  by  you, 
but  it  leaves  the  weight  of  that  evi- 
dence to  be  determined  by  you  also. 

"I  need  hardly  say  to  you  that  no 
verdict  could  safely  be  rendered  upon 
the  evidence  of  the  accused  party  only, 
under  such  circumstances.  If  it  were 
recognized,  by  such  a  verdict,  that  a 
man  on  trial  for  his  life  could  secure 
an  acquittal  by  simply  testifying,  him- 
self, that  he  had  committed  the  crime 
charged  under  a  delusion,  an  inspira- 
tion, an  irresistible  impulse,  this  would 
be  to  proclaim  an  universal  amnesty 
to  criminals  in  the  past,  and  an  un- 
bounded license  for  the  future,  and  the 
courts  of  justice  might  as  well  be 
closed. 

"It  must  be  perfectly  apparent  to 
you  that  the  existence  of  such  a  delu- 
sion can  be  best  tested  by  the  language 

575 


§  681.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


and  conduct  of  the  party  immediately 
before  and  at  the  time  of  the  act. 

"  And  while  the  accused  party  can- 
not make  evidence  for  himself  by  his 
subsequent  declarations,  on  the  other 
hand,  he  may  make  evidence  against 
himself,  and,  when  those  declarations 
amount  to  admissions  against  himself, 
they  are  evidence  to  be  considered  by 
a  jury. 

"  Let  me  here  say  a  word  about  the 
characteristics  of  this  form  of  delusion. 

"It  is  easy  to  understand  that  the 
conceit  of  being  inspired  to  do  an  act, 
may  be  either  a  sane  belief  or  an  in- 
sane delusion.  A  great  many  Chris- 
tians believe,  not  only  that  events 
generally  are  providentially  ordered, 
but  that  they  themselves  receive  spe- 
cial providential  guidance  and  illumi- 
nation in  reference  to  both  their  inward 
thoughts  and  outward  actions,  and,  in 
an  undefined  sense,  are  inspired  to 
pursue  a  certain  course  of  action  ;  but 
this  is  a  mere  sane  belief,  whether  well 
or  ill  founded.  On  the  other  hand,  if 
you  were  satisfied  that  a  man  sincerely, 
though  insanely,  believed,  that,  like 
Saul  of  Tarsus,  on  his  way  to  Damas- 
cus, he  had  been  smitten  to  the  earth, 
had  seen  a  great  light  shining  around 
him,  had  heard  a  voice  from  Heaven, 
warning  and  commanding  him,  and 
that  thenceforth,  in  reversal  of  his 
whole  previous  moral  bent  and  mental 
convictions,  he  had  acted  upon  this 
supposed  revelation,  yon.  would  have 
before  you  a  case  of  an  imaginary  in- 
spiration amounting  to  an  insane  delu- 
sion. 

"The  question  for  you  to  consider 
is,  whether  the  case  of  the  defendant 
presents  anything  analogous  to  this. 

"The  theory  of  the  government  is, 
that  the  defendant  committed  the 
homicide  in  the  full  possession  of  his 
faculties  and  from  perfectly  sane  mo- 
tives ;  that  he  did  the  act  from  re- 
venge, or  perhaps  from  a  morbid  desire 

576 


for  notoriety  ;  that  he  calculated  de- 
liberately upon  being  protected  by 
those  who  were  politically  benefited  by 
the  death  of  the  president  and  upon 
some  ulterior  benefit  to  himself ;  that 
he  made  no  pretence  to  inspiration  at 
the  time  of  the  assassination,  nor  until 
he  discovered  that  his  expectations  of 
help  from  the  so-called  Stalwart  wing 
of  the  Republican  party  were  delu- 
sive, and  that  these  men  were  de- 
nouncing his  deed,  and  that  then  for 
the  first  time,  when  he  saw  the  neces- 
sity of  making  out  some  defence,  he 
broached  this  theory  of  inspiration 
and  irresistible  pressure  forcing  him 
to  the  commission  of  the  act. 

"If  this  be  true,  you  would  have 
nothing  to  indicate  the  real  motives 
of  the  act  except  what  I  have  already 
considered.  Whether  it  is  true  or  not, 
you  must  determine  from  all  the  evi- 
dence. 

"  It  is  true  that  the  term  'inspira- 
tion' does  not  appear  in  the  papers 
first  written  by  the  defendant,  nor  in 
those  delivered  to  General  Reynolds, 
except  at  the  close  of  the  one  dated 
July  19,  in  which  he  says  that  the 
inspiration  is  worked  out  of  him ; 
though,  what  that  means  is  not  clear. 
It  is  true,  also,  that  this  was  after, 
according  to  General  Reynolds,  he  had 
been  informed  how  he  was  being  de- 
nounced by  the  Stalwart  Republicans. 

"  In  one  of  the  first  papers  I  have 
referred  to,  the  president's  removal 
was  called  an  act  of  God,  as  were  his 
nomination  and  election,  but  whether 
this  meant  anything  more  than  that 
it  was  an  act  of  God  in  the  sense  in 
which  all  great  events  are  said  to  be 
ordered  by  Providence,  is  not  clear. 

"Dr.  Noble  Young  testifies  that  a 
few  days  after  defendant's  entrance 
into  the  prison — a  time  not  definitely 
fixed — he  told  him  he  was  inspired  to 
do  the  act,  but  qualified  it  by  saying 
that  if  the  president   should   die,  he 


POLITICO-MANIA. 


[§  681. 


would  be  confirmed  in  his  belief  that 
it  was  an  inspiration ;  but  if  not,  per- 
haps not. 

"  The  emphatic  manner  in  which,  in 
both  the  papers  delivered  to  General 
Reynolds,  the  defendant  declared  that 
the  assassination  was  his  own  concep- 
tion and  execution,  and  whether  right  or 
wrong  he  took  the  entire  responsibility, 
his  detailed  description  of  the  manner 
in  which  the  idea  occurred  to  him,  and 
how  it  was  strengthened  by  his  read- 
ing, etc.,  and  his  omission  to  state 
anything  about  a  direct  inspiration 
from  the  Deity,  at  that  time,  are  all 
circumstances  to  be  considered  by  you 
on  the  question  whether  he  then  held 
that  idea. 

"  On  the  other  hand,  you  have  the 
prisoner's  testimony,  in  which  he  now 
asserts  that  he  conceived  himself  to  be 
under  an  inspiration  at  the  time.  He 
also  advanced  this  claim  in  his  inter- 
views with  the  expert  witnesses  shortly 
before  the  trial. 

"  It  becomes  necessary  then  to 
examine  the  case  on  the  assumption 
that  the  prisoner's  testimony  may  be 
true,  and  to  ascertain  from  his  de- 
claration and  testimony  what  kind 
of  inspiration  it  is  which  he  thus  as- 
serts. 

"According  to  the  testimony  of  Dr. 
Strong,  he  inquired  of  the  defendant 
if  he  claimed  to  have  had  any  direct 
revelation  from  heaven,  and  the  an- 
swer was  that  he  did  not  believe  in  any 
such  nonsense. 

"  According  to  Dr.  Macdonald.  who 
interviewed  the  prisoner  on  the  13th 
of  November,  he  did  not  then,  in 
terras,  speak  of  his  idea  of  removing 
the  president  as  an  inspiration,  but  as 
a  conception  of  his  own,  and  said  that 
after  conceiving  the  idea,  he  tried  to 
put  it  aside  ;  that  it  was  repulsive  to 
him  at  first ;  that  he  waited  a  week  or 
two,  thinking  over  it,  and  waiting  for 
VOL.  I.— 37 


the  Almighty  to  interfere.  He  had 
conceived  the  idea  himself,  but  he 
wished  the  Almighty  to  have  the  op- 
portunity of  interfering  to  prevent  its 
execution  ;  and  at  the  end  of  two 
weeks,  no  interference  coming  from 
the  Almighty,  he  formed  the  delibe- 
rate purpose  of  executing  the  act,  etc. 

"  According  to  the  testimony  of  Dr. 
Gray,  the  prisoner  said  that  he  had 
received  no  instructions,  heard  no 
voice  of  God,  saw  no  vision  in  the 
night,  or  at  any  time  ;  that  the  idea 
came  into  his  own  mind  first,  and  after 
thinking  over  it  and  reading  the  papers 
when  he  arrived  at  the  conclusion  to 
do  the  act,  he  believed  then  it  was  a 
right  act,  and  was  justified  by  the  po- 
litical situation. 

"When  asked  how  he  could  apply 
this  as  an  instruction  from  the  Deity, 
he  said  it  was  a  pressure  of  the  Deity  ; 
that  this  duty  of  doing  it,  as  he  claimed, 
had  pressed  him  to  do  it. 

"  Again,  he  said,  he  had  not  connected 
the  Deity  with  the  inception  and  development 
of  the  act;  that  was  his  own.  He  did 
not  get  the  inspiration  until  the  time 
came  for  it,  and  that  the  inspiration 
came  when  he  had  reached  the  con- 
clusion and  determination  to  do  the 
act. 

"Perhaps  the  most  remarkable  of 
the  prisoner's  statements  to  Dr.  Gray 
was,  that  at  the  very  time  when  he 
was  planning  the  assassination,  he 
was  also  devising  a  theory  of  insanity 
which  should  be  his  defence,  which 
theory  was  to  be,  that  he  believed  the 
act  of  killing  was  an  inspired  act. 

"  Perhaps  equally  remarkable  was 
the  prisoner's  theory  propounded  in 
this  conversation,  viz.,  that  he  was 
not  medically  insane,  but  legally  so,  i.  e., 
irresponsible,  because  the  act  was  done 
without  malice. 

"  Finally,  on  this  subject  you  have 
the  defendant's  own  testimony. 

577 


§  681.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


"  He  does  not  profess  to  have  had 
any  visions  or  direct  revelation  or  dis- 
torted conception  of  facts. 

"But  he  says  that  while  pondering 
over  the  political  situation  the  idea 
suddenly  occurred  to  him  that  if  the 
president  were  out  of  the  way,  the 
dissentions  of  his  party  would  be 
healed ;  that  he  read  the  papers  with 
an  eye  on  the  possibility  of  the  presi- 
dent's removal,  and  the  idea  kept 
pressing  on  him  ;  that  he  was  horri- 
fied ;  kept  throwing  it  off ;  did  not 
want  to  give  it  attention ;  tried  to 
shake  it  ofif,  but  it  kept  growing  upon 
him,  so  that  at  the  end  of  two  weeks 
his  mind  was  thoroughly  fixed  as  to 
the  necessity  for  the  president's  re- 
moval and  the  divinity  of  the  inspira- 
tion. He  never  had  the  slightest  doubt 
of  the  divinity  of  the  inspiration  from 
the  1st  of  June.  He  kept  praying 
about  it,  and  that  if  it  was  not  the 
Lord's  will  that  he  should  remove  the 
president,  there  would  be  some  way 
by  which  His  providence  would  inter- 
cept the  act.  He  kept  reading  the 
newspapers,  and  his  inspiration  was 
being  confirmed  every  day,  and  since  the 
1st  day  of  June  he  has  never  had  a 
doubt  about  the  divinity  of  the  act. 

"  In  the  cross-examination  he  said: 
If  the  political  necessity  had  not  ex- 
isted, the  president  would  not  have 
been  removed — there  would  have  been 
no  necessity  for  the  inspiration.  About 
the  1st  of  June  he  made  up  his  mind 
as  to  the  inspiration  of  the  act  and 
the  necessity  for  it ;  from  the  1 6tli  of 
June  to  the  2d  of  July  he  prayed  that 
if  he  was  wrong,  the  Deity  would  stop 
him  by  His  providence.  In  May  it  was 
an  embryo  inspiration — a  mere  impres- 
sion that  possibly  it  might  have  to  be 
done.  He  was  doubting  whether  it 
was  the  Deity  tliat  was  inspiring  him, 
and  was  praying  that  the  Deity  would 
not  let  him  make  a  mistake  about  it, 

578 


and  that  at  last  it  was  the  Deity,  and 
not  he,  who  killed  the  president. 

"Again,  the  confirmation  that  it 
was  the  Deity,  and  not  the  devil,  who 
inspired  the  idea  of  removing  the  pre- 
sident came  to  him  in  the  fact  that  the 
newspapers  were  all  denouncing  the 
president.  He  saw  that  the  political 
situation  required  the  removal  of  the 
president,  and  that  is  the  way  he  knew 
that  his  intended  act  was  inspired  by 
the  Deity  ;  but  for  the  political  situa- 
tion, he  would  have  thought  that  it 
came  from  the  devil. 

"This  is  the  substance  of  all  that 
appears  in  the  case  on  the  subject  of 
inspiration. 

"  It  is  proper  to  call  your  attention 
to  some  variations  in  the  prisoner's 
statements  at  different  times. 

"In  two  of  the  papers  of  July  he 
says  it  was  his  own  conception,  and  he 
took  the  entire  responsibility. 

"  In  the  conversations  reported  by 
Dr.  Gray  in  November,  he  did  not 
connect  the  Deity  with  the  inception 
of  the  act.  The  conception  was  his 
own,  and  the  inspiration  came  after  he 
made  up  his  mind ;  but  he  does  not 
explain  what  he  meant  by  the  inspi- 
ration, unless  it  was  that  it  was  a 
pressure  upon  him,  or,  as  he  expresses 
it,  the  duty  of  doing  it  was  pressing 
upon  him. 

"  In  his  testimony  he  disclaims  all  re- 
sponsibility while  he  still  speaks  of  the 
idea  of  removing  the  president  as  an 
impression  which  arose  in  his  own 
mind  first.  He  says  that  in  his  reflec- 
tions about  it,  he  debated  with  him- 
self whether  it  came  from  the  Deity  or 
the  devil ;  prayed  that  God  would  pre- 
vent it  if  it  was  not  His  will ;  and 
finally  made  up  his  mind,  from  a  con- 
sideration of  the  political  stuation, 
that  it  was  inspired  by  Him. 

"On  all  this,  the  question  for  you 
is,  whether,  on  the  one  hand,  the  idea 


POLITICO-MANIA. 


[§  681. 


of  killing  the  president  first  presented 
itself  to  the  defendant  in  the  shape  of 
a  command  or  inspiration  of  the  Deity, 
in  the  manner  in  which  insane  delu- 
sions of  that  kind  arise,  of  which  you 
have  heai'd  much  in  the  testimony ; 
or,  on  the  other  hand,  it  was  a  concep- 
tion of  his  own,  followed  out  to  a  reso- 
lution to  act,  and,  if  he  thought  at  all 
ahout  inspiration,  it  was  simply  a  spec- 
ulation or  theory,  or  theoretical  conclu- 
sion of  his  own  mind,  drawn  from  the 
expediency  or  necessity  of  the  act,  that 
his  previously  conceived  ideas  were  in- 
spired. 

"  If  the  latter  is  a  correct  representa- 
tion of  his  state  of  mind,  it  would  show 
nothing  more  than  one  of  the  same  vaga- 
ries of  reasoning  that  I  have  already 
characterized  as  furnishing  no  excuse 
for  crime. 

"  Unquestionably,  a  man  may  he  in- 
sanely convinced  that  he  is  inspired  by 
the  Almighty  to  do  an  act,  to  a  degree 
that  will  destroy  his  responsibility  for 
the  act. 

"  But,  on  the  other  hand,  he  cannot 
escape  responsibility  by  baptizing  his 
own  spontaneous  conceptions  and  re- 
flections and  deliberate  resolves  with 
the  name  of  inspiration. 

"  On  the  direct  question  whether  the 
prisoner  knew  that  he  was  doing  wrong 
at  the  time  of  the  killing,  the  only 
direct  testimony  is  his  own,  to  the  con- 
trary effect. 

"One  or  two  circumstances  maybe 
suggested  as  throwing  some  light  on 
the  question. 

"  The  declaration  that,  right  or  ivrong, 
he  took  the  responsibility,  made  shortly 
afterward,  may  afford  some  indication 
whether  the  question  of  wrong  had 
suggested  itself.  And  his  testimony 
that  he  was  horrified  when  the  idea  of 
assassination  first  occurred  to  him,  and 
he  tried  to  put  it  away,  is  still  more 
pertinent. 

"His  statement,  testified  to  by  Dr. 


Gray,  that  he  was  thinking  of  the  de- 
fence of  inspiration  while  the  assassina- 
tion was  being  planned,  tends  to  show 
a  knowledge'of  the  legal  consequences 
of  the  killing.  His  present  statement 
that  no  punishment  would  be  too 
quick  or  severe  for  him  if  he  killed  the 
president  otherwise  than  as  agent  of 
the  Deity,  shows  a  present  knowledge 
of  the  wrongfulness  of  the  act  in  itself, 
but  this  declaration  is  of  value  on  this 
question  of  knowledge,  only  in  case 
you  should  believe  that  he  had  the 
same  appreciation  of  the  act  at  the  time 
of  its  commission,  and  disbelieve  his 
story  about  the  inspiration. 

"  I  have  said  nearly  all  that  I  need 
say  on  the  subject  of  insane  delusion. 

"The  answer  of  the  English  judges, 
that  I  have  referred  to,  has  not  been 
deemed  entirely  satisfactory,  and  the 
courts  have  settled  down  upon  the 
question  of  knowledge  of  right  and 
wrong  as  to  the  particular  act,  or  rather 
the  capacity  to  know  it,  as  the  test  of 
responsibility.  And  the  question  of 
insane  delusion  is  only  important,  as 
it  throws  light  upon  the  question  of 
knowledge  of,  or  capacity  to  know,  the 
right  and  wrong. 

"  If  a  man  is  under  an  insane  delu- 
sion that  another  is  attempting  his 
life,  and  kills  him  in  self-defence,  he 
does  not  know  that  he  is  committing 
an  unnecessary  homicide.  If  a  man 
insanely  believes  that  he  has  a  com- 
mand from  the  Almighty  to  kill,  it  is 
difiicult  to  understand  how  such  a  man 
can  know  that  it  is  wrong  for  him  to  do 
it.  A  man  may  have  some  other  insane 
delusion  which  would  be  quite  con- 
sistent with  a  knowledge  that  such  an 
act  is  wrong  ;  such  as,  that  he  had  re- 
ceived an  injury  ;  and  he  might  kill  in 
revenge  for  it,  knowing  that  it  would 
be  wrong. 

"And  I  have  dwelt  upon  the  ques- 
tion of  insane  delusion,  simply  because 
evidence  relating  to  that,  is  evidence 

579 


§  681.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


touching  the  defendant's  power,  or 
want  of  power,  from  mental  disease,  to 
distinguish  between  right  and  wrong, 
as  to  the  act  done  by  him,  which  is  the 
broad  question  for  you  to  determine, 
and  because  that  is  the  kind  of  evi- 
dence on  this  question  which  is  relied 
on  by  the  defence. 

"  It  has  been  argued  with  great  force, 
on  the  part  of  the  defendant,  that  there 
are  a  great  many  things  in  his  conduct 
which  could  never  be  expected  of  a 
sane  man,  and  which  are  only  explain- 
able on  the  theory  of  insanity.  The 
very  extravagance  of  his  expectations 
in  connection  with  this  deed — that  he 
would  be  protected  by  the  men  he  was 
to  benefit,  would  be  applauded  by  the 
whole  country  when  his  motives  were 
made  known — has  been  dwelt  upon  as 
the  strongest  evidence  of  imsouudness. 

"Whether  this  and  other  strange 
things  in  his  career  are  really  indi- 
cative of  partial  insanity,  or  can  be 
accounted  for  by  ignorance  of  men,  ex- 
aggerated egotism,  or  perverted  moral 
sense,  might  by  a  question  of  difficulty. 
And  difficulties  of  this  kind  you  might 
find  very  perplexing  if  you  were  com- 
pelled to  determine  the  question  of 
insanity  generally,  without  any  rule 
for  your  guidance. 

"  But  the  only  safe  rule  for  you  is  to 
direct  your  reflections  to  the  one  ques- 
tion which  is  the  test  of  criminal  re- 
sponsibility, and  which  has  been  so 
often  repeated  to  you,  viz.,  whether, 
whatever  may  have  been  the  prisoner's 
singularities  and  eccentricities,  he  pos- 
sessed the  mental  capacity,  at  the  time 
the  act  was  committed,  to  know  that  it 
was  wrong,  or  was  deprived  of  that 
capacity  by  mental  disease. 

' '  In  all  this  matter,  there  is  one  im- 
portant distinction  that  you  must  not 
lose  sight  of,  and  you  are  to  decide  how 
far  it  is  applicable  to  this  case.     It  is 

580 


the  distinction  between  mental  and 
moral  obliquity  ;  between  a  mental  in- 
capacity to  understand  the  distinctions 
between  right  and  wrong,  and  a  moral 
indifference  and  insensibility  to  those 
distinctions.  The  latter  results  from  a 
blunted  conscience,  a  torpid  moral 
sense  or  depravity  of  heart ;  and  some- 
times we  are  not  inapt  to  mistake  it  for 
evidence  of  something  wrong  in  the 
mental  constitution.  We  have  pro- 
bably all  known  men  of  more  than  the 
average  of  mental  endowments,  whose 
whole  lives  have  been  marked  by  a 
kind  of  moral  obliquity  and  apparent 
absence  of  the  moral  sense.  We  have 
known  others  who  have  first  yielded  to 
temptation  with  pangs  of  remorse,  but 
each  transgression  became  easier,  until 
dishonesty  became  a  confirmed  habit, 
and  at  length  all  sensitiveness  of  con- 
science disappeared. 

"  When  we  see  men  of  seeming  intel- 
ligence and  of  better  antecedents  re- 
duced to  this  condition,  we  are  prone  to 
wonder  whether  the  balance  wheels  of 
the  intellect  are  not  thrown  out  of  gear. 
But  indifference  to  what  is  right  is  not 
ignorance  of  it,  and  depravity  is  not 
insanity,  and  we  must  be  careful  not 
to  mistake  moral  perversion  for  mental 
disease. 

"Whether  it  is  true  or  not  that  in- 
sanity is  a  disease  of  the  physical 
organ,  the  brain,  it  is  clearly  in  one 
sense  a  disease,  when  it  attacks  a  man 
in  his  maturity.  It  involves  a  depart- 
ure from  his  normal  and  natural  con- 
dition. And  this  is  the  reason  why  an 
inquiry  into  the  man's  previous  con- 
dition is  so  pertinent,  because  it  tends 
to  show  whether  what  is  called  an  act 
of  insanity  is  the  natural  outgrowth  of 
his  disposition  or  is  utterly  at  war  with 
it,  and,  therefore,  indicates  an  un- 
natural change." 


IDIOCY. 


[§  682. 


CHAPTER  VI. 


IDIOCY,  IMBECILITY,  AND  DEMENTIA. 


I.  Idiocy. 

Mental  and  moral  faculties  undevel- 
oped in  idiocy,  §  682. 

Variations  in  this  respect,  §  683. 

Connection  of  idiocy  with  consanguin- 
eous marriages,  §  684. 

Classification  by  Howe,  §  685. 

Cranial  measiirements  by  Esquirol,  § 
686. 

Non-congenital  idiocy  may  exist  with- 
out disease,  §  687. 

Occasional  features,  §  688. 

Idiocy  easily  recognizable,  §  689. 


II.  Imbecility. 

Maybe  accompanied  by  insanity,  §  692. 
May  be  without  insanity,  §  694. 
Distinguished  from  idiocy,  §  695. 
Illustration  of  this  distinction,  §  696. 

III.  Dementia. 

Dementia  originates  in  mental  depres- 
sion, §  698. 

Analogy  between  idiocy  and  dementia, 
§  699. 

Falret's  position  that  dementia  is  a 
period,  not  a  form  of  mental  un- 
soundness, §  700. 

Description  of  dementia  by  Ray,  §  701, 


I.    IDIOCY. 

§  682.  Idiocy,  when  complete,  is  marked  by  an  entire  absence 
of  reason.^     The  moral  as  well  as  the  mental  faculties   -^q^^^^  ^nd 
are  undeveloped.      There  is  generally  great  imperfect-    ™o^^^ 
ness  in  speech,  dependent  sometimes  on  malformation,    undevei- 
sometimes  on  a  deficiency  in  or  want  of  the  powers  of 
imitation,   so  that  even  when  the   hearing   and   speech  are  both 
entirely  mature,  the  patient  remains  unable  to  do  more  than  in  the 
one  case  to  show  his  knowledge  of  the  existence  of  sound,  and  in 
the  other  to  give  utterance  to  noises  not  above,  if  equal  to,  those 
of  the  brute  creation.     Taste  and  smell  are  equally  imperfect.     In 
many  cases  there  is  an  inability  to  perceive  odors,  and  in  most 
nothing  but  the  coarsest  discrimination  in  the  selection  of  articles 
of  food.     Wallowing  in  personal  filth,  devouring  even  excrement 

»  Supra,  ^1;  Siebold,  §  200;  Feuch-     742;    Esquirol,  466;    19  Journ.  Ment. 
tersleben,  London  ed.  p.  354 ;   Morel,     Sci.  169. 
1.   p.   52;    Taylor,   Med.    Jur,   (1873), 

581 


§  684.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

with  apparent  avidity,  indisposition  to  eat  at  all  unless  food  be 
placed  directly  before  the  eye,  drinking  urine  -with  as  little  appear- 
ance of  distaste  as  Avater,  are  incidents  one  or  more  of  which  are  to 
be  found  in  almost  every  case  of  idiocy.  And  the  same  low  grade 
of  sensibility  and  of  flexibility  is  found  in  the  purely  physical  sys- 
tem. The  nerves  are  almost  torpid.  Limbs  sometimes  have  been 
amputated  without  apparent  pain,  and  Esquirol  even  tells  us  of  labor 
having  been  undergone  without  the  patient  being  conscious  of  the 
fact  or  its  meaning.  The  arms  are  frequently  of  unequal  length, 
and  misshapen ;  and  the  limbs  generally  are  crooked  and  feeble. 
A  careless  and  broken  gait  distinguishes  them  in  most  cases.  Even 
the  eyes  are  defectively  hung,  and  seem  incapable  of  poising  them- 
selves at  a  right  level.  And  in  the  lower  class  of  cases  there  is 
sometimes  so  great  a  defectiveness  of  vision  as  to  prevent  the  patient 
from  perceiving  the  most  obvious  objects.  And,  even  when  the 
powers  of  vision  and  of  motion  exist,  the  intellectual  powers  are 
sometimes  so  attenuated  as  to  make  attempts  to  reach  a  desired 
point  entirely  abortive,  though  there  be  entire  muscular  power  for 
such  a  purpose, 

§  683.  While,  however,  the  reasoning  powers  are  almost  entirely 
.  defective,  there  is  sometimes  a  perceptible,  though  un- 

in  this  re-  equal,  development  of  the  moral  sentiments.  Self-esteem, 
love  of  approbation,  religious  awe,  sometimes  assume  a 
supremacy  over  the  system,  which  is  the  more  marked  because  it  is 
checked  by  no  countervailing  qualities.  Dr.  Rush  tells  us  of  an 
idiot  who  spent  his  life  in  little  acts  of  benevolence  to  others,  though, 
in  the  dispensation  of  them,  as  well  as  all  other  points  in  his  life, 
he  shoAved  no  reasoning  powers  whatever.  Religious  veneration  is 
sometimes  developed  to  an  exaggerated  degree,  and  expended  upon 
the  most  unnatural  objects.  Vanity — such  as  that  which  distin- 
guishes some  branches  of  the  brute  creation — finds  in  idiots  a  preg- 
nant place.  And  Esquirol  gives  us  numerous  instances  in  which 
the  talent  for  thieving,  and  that  to  a  very  remarkable  extent,  was 
found  associated  with  entire  vacuity  of  mind  in  all  other  relations. 
The  same  observation  applies,  though  in  a  much  less  marked  extent, 
to  the  sexual  propensities. 

§  684.  "  Idiocy,"  says  Dr.  Maudsley,^  "  is  indeed  a  manufac- 

'  Body  and  Mind,  London,  1870,  p.  44. 

582 


IDIOCY.  [§  685. 

tured  article  ;  and,  although  we  are  not  always  able  to    connection 

tell  how  it  is  manufactured,  still  its  important  causes  are    ^^1^1^°^ 

known  and  are  within  control.    Many  cases  are  distinctly    ous  mar- 
riages. 
traceable  to  parental  intemperance  and  excess.     Out  of 

■300  idiots  in  Massachusetts,  Dr.  Howe  found  as  many  as  145  to  be 
the  offspring  of  intemperate  parents  ;  and  there  are  numerous  scat- 
tered observations  which  prove  that  chronic  alcoholism  in  the  parent 
may  directly  occasion  idiocy  in  the  child.  I  think ^  too^  there  is  no 
reasonable  question  of  the  ill  effects  of  marriages  of  consanguinity  ; 
that  their  tendency  is  to  produce  degeneracy  of  the  race,  and  idiocy 
is  the  extremest  form  of  such  degeneracy ^^ 

§  685.  The  following  classification  is  from  Dr.  Howe : — 

"  Idiots  of  the  lowest  class  are  mere  organisms,  masses   ciassiflca- 
of  flesh  and  bone  in  human  shape,  in  which  the  brain  and 
nervous  system  have  no  command  over  the  system  of  voluntary 
muscles  ;  and  which,  consequently,  are  without  power  of  locomo- 
tion, without  speech,  without  any  manifestations  of  intellectual  or 
affective  faculties. 

"  Fools  are  a  higher  class  of  idiots,  in  whom  the  brain  and  ner- 
vous system  are  so  far  developed  as  to  give  partial  command  of  the 
voluntary  muscles  ;  who  have,  consequently,  considerable  power  of 
locomotion  and  animal  action,  partial  development  of  the  intellectual 
and  affective  faculties,  but  only  the  faintest  glimmer  of  reason,  and 
very  imperfect  speech. 

"  Simpletons  are  the  highest  class  of  idiots,  in  whom  the  har- 
mony between  the  nervous  and  muscular  systems  is  nearly  perfect ; 
who,  consequently,  have  normal  powers  of  locomotion  and  animal 
action,  considerable  activity  of  the  perceptive  and  affective  faculties, 
and  reason  enough  for  their  simple  individual  guidance,  but  not 
enough  for  their  social  relations. "^ 

"  It  does  not  take  the  case  out  of  the  definition  of  idiocy  that 
some  particular  faculty  has  been  saved  from  the  general  wreck. 

•  See  statistics  as  to  the  effect  of  con-  of  Massachusetts,  by  the  Commissioners 

sanguineous    marriages,  Journ.    Stat,  appointed  to  inquire  into  the  condition 

Soc,  June,  1875.     As  to  the  effects  of  of  idiots  within  the  Commonwealth,  by 

restraint  on  the   liberty  of  marriage,  S.  G.  Howe,  pp.   147.     Boston,   1848. 

Contemporary   Rev.,  Aug.   1873.     See  Senate   Doc.      See  a  classification   by 

also  21  Journ.  Ment.  Sci.  623.  Dr.  Ireland,  18  Journ.  Ment.  Sci.  333. 


2  Second   Report  of  the  Legislature 


583 


§  686.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

This  is  often  the  case,  particularly  with  music.  Thus  there  is  at 
present  in  the  Salp^fcri^re  a  girl  idiotic  to  an  extreme  degree,  who 
does  not  speak,  and  cannot  even  dress  herself.  However,  her 
keeper  has  recently  discovered  in  her  a  decided  taste  for  music. 
She  often  can  repeat  faithfully  a  whole  passage  of  music  played  or 
sung  to  her  only  once  ;  even  if  the  passage  is  left  incomplete,  in 
repeating  it  she  will  terminate  it  in  the  right  key  and  tone.  A 
first-rate  performer  on  the  piano  was  brought  to  play  with  her,  and 
her  transports  amounted  almost  to  frenzy.  At  certain  passages  of 
rapid  transition  from  flats  to  sharps,  she  uttered  cries  of  trans- 
port, and  commenced  biting  her  fingers  to  calm  her  emotions.  She 
is  an  immense  eater,  and  greedily  snatches  at  fruit ;  but  the 
moment  she  hears  the  instrument,  she  stops  until  the  music  has 
ceased." 

Dr.  Howe  mentions  an  idiot  who  had  an  astonishing  power  of 
reckoning.  "  Tell  him  your  age,  and  he  will  in  a  very  short  time 
give  you  the  number  of  minutes." 

§  686.  The  following  statement  by  Esquirol  will  throw  much 
light  on  this  phase  of  mental  unsoundness :  "  With  each 
case  of  idiocy  which  I  have  published  in  this  chapter  I 
have  also  given  the  admeasurements  of  the  head  taken 
during  life.  By  bringing  them  together,  we  may  compare  the 
means  with  the  results  obtained  by  my  young  confreres  ;  time  will 
not  permit  me  to  do  it.  For  those  who  are  fond  of  this  kind  of 
investigation,  I  subjoin  a  table  of  the  mean  results  of  admeasure- 
ment of  the  head  taken  from  a  woman  in  the  enjoyment  of  good 
health,  and  from  plaster  casts,  taken  after  their  death,  in  the  case 
of  thirty-six  insane  women,  seventeen  imbeciles,  and  seventeen 
idiots.  In  the  case  of  three  idiots,  whose  heads  were  very  small, 
the  admeasurements  were  taken  from  the  crania. 


Cranial 
measure- 
ments. 


"TABLE  OF  CRANIAL  ADMEASUREMENTS. 


Antero- 

Antero- 

Trans- 

Circum- 

posterior 

posterior 

verse 

Total. 

ference. 

curvature. 

diameter. 

diameter. 

Women  in  a  state  of  health     . 

21.87in. 

13.30  in. 

6.98  in. 

5.29  in. 

47.44  in. 

Insane  .... 

20.82- 

11.50 

6.96 

5.67 

44.95 

Imbeciles 

20.19 

11.49 

6.69 

5.63 

44. 

Idiots    .... 

19.92 

11.26 

6.85 

5.39 

43.42 

Idiots — Microcephalous    . 

15.07 

7.51 

4.88 

4.17 

31.63 

584 


IDIOCY.  [§  687. 

"  From  this  table  we  learn :  1st.  That  the  circumference  of  the 
head,  according  to  admeasurements  taken  among  Avomen  enjoying 
the  use  of  their  reason,  from  insane  women,  imbeciles,  and  idiots, 
diminishes  in  an  almost  equal  proportion  from  the  women  in  the 
enjoyment  of  usual  health  to  the  idiot,  deprived  even  of  instinct. 
2d.  That  the  fronto-occipital  curvature  diminishes  in  a  remarkable 
degree  from  the  women  in  sound  mind  to  the  insane  female,  Avhilst 
no  variation  is  noticed  in  the  insane  person  to  the  imbecile,  and  a 
diiference  of  but  six  millimetres  between  the  latter  and  idiocy.  3d. 
That  the  fronto-occipital  diameter  is  the  same  in  the  case  of  the 
women  enjoying  the  use  of  their  reason  and  the  insane  women,  and 
that  there  is  a  diminution  of  but  six  millimetres  between  the  insane 
person  and  the  idiot,  while  the  difference  is  enormous  on  passing  to 
the  lowest  degree  of  idiocy.  4th.  That  the  bitemporal  diameter  is 
more  considerable  in  the  case  of  the  insane  women,  and  even  the 
imbecile  and  idiot,  than  in  that  of  a  woman  possessing  the  ordinary 
degree  of  intelligence.  5th.  That,  if  we  suppose  that  the  sum  of 
those  four  admeasurements  expresses  the  volume  of  the  brain,  it 
follows,  that,  the  volume  of  this  organ  diminishing  in  the  same  pro- 
portion with  the  intellectual  capacity,  that  of  the  cranium  would  be 
the  expression  of  this  capacity."^ 

§  687.    "  In  that  remarkable  obliteration  of  the  mental  facul- 
ties," says  Abercrombie,  "which  we  call  idiocy,  fatuity,    ^^ 
or  dementia,  there  is  none  of  the  distortion  of  insanity,    genital 

Ti  •  •       1      J  o     ^        n       ^  •        •        i        i  •    i  ^        icliocy  may 

it  IS  a  simple  torpor  oi  the  taculties  m  the  higher  de-  exist  with- 
grees,  amounting  to  total  insensibility  to  every  impres-  °"  isease. 
sion ;  and  some  remarkable  facts  are  connected  with  the  manner  in 
which  it  arises  without  bodily  disease.  A  man  mentioned  by  Dr. 
Rush  was  so  violently  affected  by  some  losses  in  trade  that  he  was 
deprived  almost  instantly  of  all  his  mental  faculties.  He  did  not 
take  notice  of  anything,  not  even  expressing  a  desire  for  food,  but 
merely  taking  it  when  it  was  put  into  his  mouth.  A  servant  dressed 
him  in  the  morning,  and  conducted  him  to  a  seat  in  the  parlor, 
where  he  remained  the  whole  day,  with  his  body  bent  forward  and 
his  eyes  fixed  on  the  floor.  In  this  state  he  continued  nearly  five 
years,  and  then  recovered  completely  and  rather  suddenly.  The 
account  which  he  afterwards   gave  of  his  condition  during  that 

»  Esquirol  on  Insanity,     Lea  &  Blanchard,  Philadelphia,  1845,  p.  473. 

585 


§  688.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

period  was,  that  his  mind  was  entirely  lost,  and  that  it  was  only 
about  two  months  before  his  final  recovery  that  he  began  to  have 
sensations  and  thoughts  of  any  kind.  These  at  first  served  only  to 
convey  fears  and  apprehensions,  especially  in  the  night-time.  Of 
perfect  idiocy  produced  in  the  same  manner  by  a  moral  cause,  an 
affecting  example  is  given  by  Pinel.  Two  young  men,  brothers, 
were  carried  off  by  the  conscription,  and  in  the  first  action  in  which 
they  were  engaged,  one  of  them  was  shot  dead  by  the  side  of  the 
other.  The  survivor  was  instantly  struck  with  perfect  idiocy.  He 
was  taken  home,  where  another  brother  was  so  affected  by  the  sight 
of  him  that  he  was  seized  in  the  same  manner ;  and  in  this  state 
of  perfect  idiocy  they  were  both  received  into  the  Bic^fcre.  I  have 
formerly  referred  to  various  examples  of  this  condition  supervening 
on  bodily  disease.  In  some  of  them  the  affection  was  permanent, 
in  others  it  was  entirely  recovered  from."^ 

§  688.  "  Of  these  half-witted  persons,"  remarks  Dr.  Mayo,  "  the 
Occasional  former  indulges  a  love  of  grapes,  the  latter  a  love  of 
features.  bloodshed :  the  process  of  thought  in  each  case  is  that 
of  a  deficient  understanding,  which  could  neither  prevent  the  one 
from  stealing  grapes,  nor  the  other  from  committing  violence  under 
the  influence  of  opportunity,  but  rather  forwarded  the  crime  by 
suggesting  excuses."  "  An  idiot,"  says  Dr.  Hainsdroff,  "  in  the 
Hospital  of  Salzburg,  appearing  to  be  singularly  insusceptible  of 
fear,  an  experiment  of  an  appalling  character,  and  of  appalling 
consequences,  was  made  upon  him,  as  a  means  of  putting  his  sus- 
ceptibility to  the  test.  It  was  proposed  to  make  the  impression 
upon  him  that  he  saw  a  dead  man  come  to  life.  A  person  accord- 
ingly laid  himself  out  as  a  corpse,  enveloped  in  a  shroud  ;  and  the 
idiot  was  ordered  to  watch  over  the  dead  body.  The  idiot,  per- 
ceiving some  motion  in  the  corpse,  desired  it  to  lie  still ;  but,  the 
pretended  corpse  raising  itself  in  spite  of  this  admonition,  the  idiot 
seized  a  hatchet,  which  unluckily  was  within  his  reach,  and  cut  ofi 
first  one  of  the  feet  of  the  unfortunate  counterfeit,  and  then,  un- 
moved by  his  cries,  cut  off  his  head.  He  then  calmly  resumed  his 
station  by  the  real  corpse ;  a  strong  illustration  of  the  dangerous 
hypothesis  of  harmlessness,  as  connected  with  this  state  of  mind."^ 

'    Abercombie    on    tlie    Intellectual         *  Mayo  on  Med.  Test,  in  Lunacy,  pp. 
Powers,  pp.  273,  274.     See  for  a  case  of    93,  94. 
acquired  idiocy,  21  Journ.  Ment.  Sci.  82. 

586 


IDIOCY.  [§  689. 

§  689.  As  the  different  races  of  men,  says  M.  Renaudin,  have  a 
characteristic  physiognomy,  and  as  individuals  reflect  in   j^^^^^ 
their  features  the  most  salient  points  of  their  moral  idio-    easily  re- 

cognizable. 

syncrasy,  so  the  idiot  in  this  respect  presents  a  peculiar 
stamp  which  the  least  discerning  can  recognize.  It  is  a  type  which 
can  be  distinguished  in  all  its  varieties,  even  when  the  external 
conformation  of  the  head  does  not  differ  much  from  the  normal  pro- 
portions. But  that  which  strikes  us  most  in  this  class  is  the  want 
of  symmetry,  not  only  in  the  encephalic  organ,  hut  also  in  the  other 
parts  of  the  body  ;  and  if  sometimes  the  physiognomy  is  deceitful 
in  this  respect,  the  other  parts  of  the  organism  soon  reveal  to  us  the 
want  of  co-operation  indispensable  to  the  complete  development  of 
man.  It  is  rather  by  an  observation  of  the  whole  constitution  than 
of  its  separate  parts  that  the  essential  characters  of  this  infirmity 
are  to  be  detected.  Idiots  generally  deceive  in  their  age,  which 
always  offers  at  the  different  periods  of  their  existence  a  ridiculous 
admixture  of  decrepitude  and  puerility.  The  hypertrophy  of  cer- 
tain glands,  the  flaccidity  of  the  tissues,  malformation  of  external 
essential  organs,  absence  of  all  proportion  in  the  length  of  their 
limbs,  difficulty  and  uncertainty  in  their  movements,  which  are 
almost  convulsive,  the  retraction  of  certain  tendons,  an  arrest  of 
development  in  the  figure  and  in  muscular  contractility — such  are 
the  general  appearances  that  characterize  the  idiot  in  his  external 
conformation.  His  mode  of  living  is  in  keeping  with  this  degrada- 
tion of  form,  and  furnishes  us  with  the  means  of  perceiving  some  of 
the  relations  existing  between  the  physical  and  the  moral.  His 
language  is  scarcely  rudimentary.  He  does  not  think,  has  nothing 
to  say,  and  nothing  in  him  calls  for  the  vocal  motion.  When,  how- 
ever, this  mutism  is  not  idiopathic,  he  can  be  made  to  articulate 
certain  words,  and  his  movements  can  be  placed  under  some  moral 
control ;  but  in  undergoing  this  external  influence  he  still  rests 
faithful  to  that  automatism  which  is  his  principal  characteristic.  It 
is  always  a  material  and  instinctive  impulse  that  controls.  The 
idiot  shows,  in  the  satisfying  of  his  wants,  a  brutality  in  close  con- 
nection with  the  irregularity  of  all  his  actions,  and  the  want  of 
balance  of  his  functions,  which  all  coincide  with  personal  instinct. 
He  yields  himself  to  onanism  with  a  revolting  cynicism ;  he  eats 
with  a  voracity  that  defies  everything,  and  which  proves  how  obtuse 
his  sensibility  is,  although  he  in  fact  suffers  more  than  any  other 

587 


§  689.]      MENTAL   UNSOUNDiSTESS   CONSIDERED   PSYCHOLOGICALLY. 

the  unhappy  effects  of  climacteric  changes.  Finally,  in  spite  of  the 
violence  of  certain  appetites,  the  functions  are  so  incompletely  per- 
formed, that  "we  must  not  be  surprised  to  see  these  unfortunates 
very  short-lived.  If,  on  the  one  hand,  nothing  has  wasted  life, 
nothing,  on  the  other  hand,  has  vivified  it,  and  one  can  easily  con- 
ceive that  it  is  extinguished,  since  it  is  without  essential  nourish- 
ment and  without  object. 

The  psychical  element  plays  no  part  in  such  an  organization. 
External  influence  is  unable  to  develop  it,  since  the  somatic  element 
is  not  in  a  condition  to  receive  it ;  and  as  to  spontaneousness,  one 
can  with  but  difficulty  perceive  the  germ.  So,  when  these  degraded 
beings,  impelled  by  a  brutal  instinct,  or  obeying  another's  will 
whose  instrument  they  are,  commit  a  culpable  act,  all  the  world 
agree  in  not  imputing  to  them  any  moral  responsibility.^ 

Idiocy,  says  M.  Falret,  cannot,  strictly  speaking,  figure  amongst 
the  forms  of  insanity.  In  this  degraded  state  man  is  fallen  below 
the  brute  ;  he  does  not  even  possess  the  instinct  of  self-preserva- 
tion. It  is  necessary  for  charity  not  only  to  bring  him  the  food 
required  for  his  nourishment,  but  to  place  it  in  his  mouth,  and  to 
protect  him  against  the  mischievous  influences  which  surround  him, 
and  against  all  destructive  causes.  Instead  of  language,  the  ex- 
clusive appendage  of  man,  since  it  is  the  expression  of  thought  in 
all  its  development,  the  complete  idiot  only  utters  certain  harsh, 
savage  inarticulate  sounds.  Instead  of  that  firm,  assured  step 
which  executes  the  exact  command  of  the  will,  the  rough,  dis- 
orderly movements  of  idiots  seem  only  phenomena  of  irritability. 
Besides,  they  are  often  immovable,  bent  down  towards  the  ground, 
and  only  execute  a  kind  of  rocking  movement,  balancing  forward 
and  backward,  to  the  right  and  to  the  left.  Without  doubt  this  is 
the  extreme  degree  of  idiocy,  for  there  are  idiots  less  degraded  in 
their  organization  and  consequently  in  their  manifestations ;  but, 
unfortunately,  to  this  feeble  development  of  the  intelligence  is  too 
often  joined  either  an  absolute  want  of  character  or  low  tastes,  in- 
citations  to  a  brutal  lasciviousness,  to  robbery,  pyromania,  and 
ferocity,  which  they  turn  against  themselves  and  against  inanimate 
objects.^ 

'    See    Etudes    Psycliologiciues    sur        2  gee  Let^ons  Cliniques,  de  M.  Falret, 
I'Alienation  Mentale,  par  L.  F.  E.  Re-    p.  243,  Paris,  1854. 
naudin,  p.  170,  Paris,  1854. 

588 


IMBECILITY. 


[§  692. 


§  690.  Cretinism  finds  no  place  in  the  United  States,  and  cannot, 
therefore,  claim  here  extended  consideration.^ 


II.    IMBECILITY. 

§  691.  Imbecility  having  almost  as  many  degrees  as  it  has  vic- 
tims, it  becomes  the  task  of  psycho-forensic  medicine  to  assign  a 
line  of  demarcation  within  which  the  judge  is  to  declare  the  respon- 
sibility of  the  agent  to  cease  to  exist.  But  this  problem  is  only  so 
far  capable  of  solution  as  we  are  enabled  to  detect  and  recognize 
the  existence  of  imbecility  in  general,  and  to  estimate  its  relation 
to  a  given  action ;  the  personal  discretion  of  the  tribunal  must 
always  have  considerable  scope  in  all  cases  near  the  boundary  line. 
In  order  to  obtain  as  firm  a  common  ground  as  possible,  it  becomes 
advisable  to  subdivide  and  classify  imbecility,  particularly  where  it 
depends  upon  particular  diseased  conditions  capable  of  ascertain- 
ment and  distinction.  In  this  respect  we  distinguish,  in  the  first 
place,  imbecility  with  and  imbecility  without  concomitant  iyisanity. 
The  subject  of  ajjhasia  has  been  already  distinctively  discussed.^ 
§  692.  Imbecility  with  concomitant  insanity  presents  the  follow- 
ing subdivisions : — 


'  The  student,  however,  who  seeks 
for  particular  information  as  to  its 
character,  is  referred  to  the  following 
treatises  :  Etudes  des  Maladies  Men- 
tales,  de  M.  Morel,  tome  i.  p.  64,  Paris, 
1854.  Gedanken  tiber  Kropf  und  Cre- 
tinismus  als  Beitrag  zur  Homatologie 
und  Homonymie.  Von  Joh.  Mich. 
Huber,  Gerichtswundarzt  zu  Ried  in 
Tyrol.  Mit  einer  Abbildung.  (Me- 
decin.  >Tahr.  des  k.  k.  osterr.  Staats, 
Mai.)  Ueber  den  Cretinismus  in  Can- 
ton Waadt.  in  der  Schweiz.  von  Dr.  H. 
Lebert,  prakt.  Arzt  zu  Paris.  (Archiv 
fiir  physiologische  Heilkunde,  VII.  B. 
6  Heft.)  Notice  of  a  very  remarkable 
disease  analogous  to  Cretinism.  By 
Hugh  Norris  ;  Med.  Times,  Jan.  1848. 
Les  goiteux  et  les  cretins  de  la  Savoie  ; 
AnnalesdeTherapeutique,  1848.  Mais, 
Ueber  den  Cretinismus  in  grosson 
Stadten  und  dessen  Aenlichkeit  mit 
dem  in  den  Alpen.     Von  Dr.  Behrend. 


(Gaz.  des  Hopitaux,  1848.  Nos.  6  and 
7.)  Cretinismus  als  genetisch — con- 
tagiose  Endemie  in  Neudenau,  etc. 
Bad.  Annalen  d.  Staats-Arzneikunde, 
1846.  Esquirol,  Mental  Maladies,  etc., 
481-2.  Sonsburg,  tiber  den  Cretinis- 
mus. Wurzb.,  1825.  Haiiflser,  tiber 
die  Beziehung  des  Sexualsystems  zur 
Psyche  ueberhaupt  und  zum  Cretinis- 
mus ins  besondere.  Wlirzb.,  1826. 
See  also  a  very  valuable  report  on  this 
point,  by  Samuel  Kneeland,  Jun., 
M.D.,  read  before  the  Boston  Soc.  for 
Med.  Improvement,  Jan.  13,  1851.  Am. 
Journ.  of  Science,  1851,  and  a  review 
of  same  in  Journal  of  Physchological 
Med.,  vol.  iv.  p.  366.  See  also  "A 
Physician's  Holiday,  or  a  Month  in 
Switzerland  in  the  Summer  of  1848, 
by  John  Forbes,  M.D.,  F.R.S.,"  Lon- 
don, 1848,  in  which  the  management 
of  the  Cretins  is  fully  described. 
2  Supra,  §§  324-327. 

589 


§  693.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

When  ac-  1.  The  Original  imbecility  which  has  lapsed  into  un- 

witMn^^^  soundness  of  mind.  The  nature  of  the  latter  will  deter- 
samty.  mine,  in  the  first  instance,  in  how  far  the  patient  is 

amenable  to  the  penal  laws  in  a  given  case  ;  but  the  fact  of  imbe- 
cility will  always  favor  the  psychological  arguments  in  favor  of 
irresponsibility. 

2.  Imbecility  supervenes  upon  the  course  of  a  mental  disorder, 
and  manifests  itself  particularly  in  the  form  of  a  failure  of  memory. 
The  question  of  responsibility  will  depend,  in  this  case,  upon  the 
same  principles  as  stated  in  the  last  preceding  head. 

3.  Specious  imbecility,  as  in  the  case  of  melancholia  attonita, 
and  as  such,  will  receive  but  little  attention  at  the  hands  of  the 
forensic  physician. 

4.  Imbecility  with  confusion  of  mind.  This  is  found  side  by 
side  with  a  failure  of  memory,  and  a  more  or  less  conspicuous  in- 
coherence and  inconsistency  of  the  perceptions,  and  a  certain  agility 
and  activity  of  the  super-physical  life.  It  is  either  a  primary  or 
secondary  form,  and  in  the  former  case  it  may  be  consequent  upon 
severe  diseases  of  the  brain,  epilepsy,  intemperance,  sexual  ex- 
cesses, and  senility  ;^  in  the  latter  case  it  may  arise  from  the  vari- 
ous forms  of  mental  unsoundness,  and  may  be  considered  as  always 
excluding  the  idea  of  moral  responsibility. 

§  693.  5.  Imbecility  remaining  after  the  patient  has  recovered 
from  an  attack  of  insanity.  This,  when  sanity  is  restored,  is  not  a 
sufficient  reason  for  suspending  the  responsibility  of  the  agent,  but 
may  often  deserve  the  attentive  consideration  of  the  judge  in  the 
moulding  of  the  sentence.     It  should  be  remembered,  however,  that 

'  In  senility  its  eflfects  are  touchingly  invariable    habit    to    call    things    by 

illustrated   in  the   following  passage,  names  the  reverse  of  what  was  right, 

from  the  life  of  the  late  Wm.  Jay  : —  and  of  what  she  herself  intended. 

"At  length,  however,  this  prop  fails  "  She  spoke  of  a  drop  of  bread,  and 
him.  After  thirty  years  of  uninter-  a  thin  bit  of  water ;  she  called  the 
rupted  domestic  happiness,  this  excel-  black  white,  and  the  white  black  ;  the 
lent  and  amiable  woman  was  stricken  cold  heat,  and  the  heat  cold  ;  preaching 
with  an  extraordinary  malady,  result-  was  hearing,  and  hearing  was  preach- 
ing in  such  a  prostration  of  mental  and  ing  ;  in  the  morning  she  wished  you 
physical  powers,  as  rendered  her,  from  good  evening,  and  in  the  evening  good 
that  time  forward,  no  longer  the  sup-  morning."  A  similar  peculiarity  mark- 
port  of  her  husband  in  his  trials,  but  ed  the  last  few  months  of  Lord  Den- 
the  object  of  his  deep  solicitude  and  man's  life.  See  supra,  §  324. 
tender  care.    It  had  become  her  almost 

590 


IMBECILITY.  [§  695 

insanity,  once  proved,  is  presumed  to  continue,  so  far  as  concerns 
responsibility,  until  restoration  to  reason  is  positively  shown. 

§  694.  Imbecility  witJiout  insanity  has  several  gradations,  all 
being   separate    denominations ;   the   highest  degree  is   ^^^^ 
called  idiocy.     Next  to  this  is  imbecility  proper ;  did-    without 
wess,  feebleness,   stu])idity,   are    inferior   grades   of   a 
stunted  growth  of  mind.     The  causes  which,  in  the  higher  stages, 
exclude  understanding  and  self-control  are  the  more  potent,  as  no 
education  has  been  imparted  here,  or,  if  imparted,  has  produced  no 
effect.     The  lower  stages  do  not  justify  the  physician  in  casting  a 
doubt  upon  the  existence  of  legal  responsibility.     They  are  for  the 
consideration  of  the  judge  alone,  and  are  interesting  in  this  point 
of  view,  because  simpletons  and  fools  often  have  a  touch  of  malice, 
brutality,  ill-will,  and  mischief  in  their  dispositions,  and  may  be  led, 
by  teasing  and  ill-treatment,  to  vindictive  hatred,  revenge,  and  vio- 
lent outbursts  of  anger. 

§  695.  "  In  some  circumstances,"  says  M.  Renaudin,  "  the 
idiotic  germ  is  less  prominent,  nothing  tends  to  reveal  it 
in  infancy,  and  the  early  years  lead  us  to  expect  a  punished 
normal  ulterior  development.  But  it  may  happen  that  a  [^^o^y. 
severe  disease,  deeply  affecting  the  organism,  super- 
venes, or  the  subject  may  have  been  submitted  to  an  intellectual 
labor  above  his  powers,  and  at  a  given  moment  an  arrest  of  de- 
velopment, as  much  in  the  physical  as  in  the  moral  system,  shows 
itself.  This  condition  sometimes  supervenes  even  without  the 
action  of  any  apparent  cause,  and  then  we  can  only  attribute  it  to 
the  influence  of  this  idiotic  principle.  Instead  of  pursuing  the 
course  marked  out  by  the  laws  of  nature,  it  is  arrested  at  a  point  of 
development,  rarely  transitory  but  most  generally  permanent,  which 
is  known  everywhere  under  the  name  of  imbecility.  The  physical 
organization  in  imbeciles  offers  less  abnormities  than  that  of  idiots  ; 
the  body  is  straighter,  and,  if  the  physiognomy  is  less  repulsive 
and  shows  a  little  more  regularity  in  its  features,  it  exhibits  but 
little  animation.  The  feelings  are  seen  in  their  rudimentary  state 
in  this  class  of  beings  ;  they  are  susceptible  of  a  more  advanced 
education,  and,  when  they  belong  to  a  family  of  easy  circumstances, 
they  can  be  made  to  submit  themselves  to  the  habits  of  a  regular 
life.  The  impressions  they  receive  are  sufficiently  durable,  pro- 
viding they  do  not  overstep  a  sufficiently  restricted  limit.     They 

591 


§  697.]      MEXTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

are  susceptible  of  a  certain  amount  of  memory,  which  in  some  cases 
reaches  a  very  remarkable  height.  Sometimes  the  ideas  they 
acquire  are  very  limited,  and  their  intellectual  spontaneousness  is 
on  a  footing  with  the  small  development  of  their  physical  spon- 
taneousness. Although  less  stupid  than  the  idiot,  automatism  is 
the  characteristic  trait  of  the  imbecile.  He  never  gives  the  impulse, 
he  receives  it ;  and  it  is  amongst  the  imbeciles  that  an  asylum  espe- 
cially finds  valuable  aids  in  its  internal  service.  If  the  effective 
sentiments  are  but  feeble,  the  instinct  of  the  feeling  of  personality 
shows  itself  perhaps  in  an  absurd  vanity,  or  in  a  savage  egotism  in 
the  satisfaction  of  wants  whose  stimulus  is  ordinarily  very  ener- 
getic. Hence  an  excessive  irritability  that  readily  degenerates  into 
mania,  or  a  malicious  cunning,  in  order  to  obtain  the  thing  coveted. 
The  imbecile  has  but  few  ideas  ;  and  as  he  knows  but  little  aban- 
dons himself  to  his  impulses  when  fear  does  not  control  him.  But 
little  capable  of  distinguishing  between  good  and  evil,  he  may  be 
a  dangerous  instrument  in  criminal  hands.  The  imbecile  commits 
a  murder  with  coolness,  shows  often  a  great  depravity  of  tastes,  and 
it  is  only  an  exception  if  you  can  perceive  in  him  any  rudimentary 
traces  of  the  moral  sense.  It  is  at  this  point  that  his  intellectual 
aptitude  ceases,  and  we  can  easily  understand  how  a  like  condition 
necessarily  excludes  all  responsibility."^ 

§  696.  The  Emperor  Napoleon  hit  upon  a  very  happy  illustra- 
j.,  tion   of  the  distinction  between  two  of  the  above-men- 

tion of  this    tioned  phases.     In  one  of  his  conversations   with  Las 

distinction.  .  i     ,  i  •  r  j-  t 

vJasas,  he  said  that  there  was  such  a  thing  as  ^\foue 
innocejite,'"  and  '-'•folie  terribW^ — a  fatuous  state  which  is  safe, 
and  one  which  is  dangerous.  A  fatuous  person,  "  unfou^'  of  the 
first  kind,  the  emperor  describes  as  reasoning,  with  the  proprietor 
of  a  vineyard  in  which  he  was  trespassing,  thus  :  "  Why,  here  are 
we  two  :  the  sun  sees  us  both  ;  therefore,  I  have  a  right  to  eat 
grapes."  The  ^^fou  terrible,'"  he  proceeds,  "  is  he  who  cuts  oft' 
the  head  of  a  man  whom  he  found  sleeping  under  a  hedge  ;  then 
hides  himself  behind  it,  in  order  to  witness  the  surprise — emharras 
— of  the  body  when  waking." 

§  697.  "  Dr.  Rush  says,"  we  quote  from  Dr.  Ray,  "  that  in  the 
course  of  his  life  he  has  been  consulted  in  three  cases  of  moral  im- 

'  Renaudin  sur  rAlienation  Mentale,  p.  173.     Paris,  1854. 

592 


DEMENTIA.  [§  699. 

becilitj  ;  and  nothing  can  better  express  the  true  character  of  their 
physiology,  than  his  remark  respecting  them.  '  In  all  these  cases,' 
he  observes,  '  there  is  probably  an  original  defective  organization  in 
those  parts  of  the  body  which  are  occupied  by  the  moral  faculties 
of  the  mind' — an  explanation  which  will  receive  but  little  counte- 
nance in  any  age  that  derives  its  ideas  of  the  mental  phenomena 
from  the  exclusive  observation  of  mind  in  a  state  of  acknowledged 
health  and  vigor.  To  understand  these  cases  properly,  requires  a 
knowledge  of  our  moral  and  intellectual  constitution,  to  be  obtained 
only  by  a  practical  acquaintance  Avith  the  innumerable  phases  of  the 
mind,  as  presented  in  its  various  degrees  of  strength  and  weakness, 
of  health  and  disease,  amid  all  its  transitions  from  brutish  idiocy 
to  the  most  commanding  intellect."^ 

III.    DEMENTIA. 

§  698.  Dementia  is  to  be  distinguished  from  general   Dementia 

.     .       ,       ^  ,  ,       p  .    .  originates 

mania  m  the  lact  that  the  former  originates  from  depres-   in  mental 
sion,  the  other  from  exaltation  of  the  natural  powers.  epression. 

§  699.  In  the  course  of  clinical  lessons  delivered  at  Bicetre,  M. 
Ferrus  gives  an  account  of  the  different  intellectual  de- 

,.,...  ,.    ,  Analogy 

bilities  m  a  way  that  throws  a  strong  light  upon  these    between 

difficult  questions.  cfemTntla^ 

Between  idiocy  and  dementia,  he  says,  there  is  a  most 
striking  analogy.  In  both  cases,  human  intelligence  is  abolished ; 
it  no  longer  possesses  the  means  of  perfectibility.  But  the  analogy 
ceases  in  examining  the  producing  causes.  With  the  idiot,  depri- 
vation of  reason  is  congenital ;  the  demented,  on  the  contrary 
arrives  progressively  at  the  total  loss  of  his  faculties.  Dementia  is 
the  destruction  of  the  intellectual  faculties,  supervening  after  the 
period  of  puberty :  it  is  a  kind  of  debility  Avhich  appears  either 
in  an  insensible  manner  or  with  the  rapidity  of  lightning — breakin<T, 
more  or  less,  all  the  connections  Avhich  unite  the  man  with  the  rest 
of  the  world. 

The  characters  of  dementia  are  sufficiently  decided,  so  as  not  to 
be  confounded  with  those  of  other  mental  affections.  In  idiocy, 
the  faculties  of  the  mind  have  never  existed,  or  have  been  destroyed 
before  their  complete  development.     In  dementia,  you  may  still 

'  Ray  on  Insanity,  p.  90. 

VOL.  I.— 38  593 


§  699.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

possibly  see  some  traces  of  an  intelligent  past ;  but  it  betrays  in 
vain  its  past  perfection :  it  is  stamped  forever  with  the  seal  of  fee- 
bleness and  nullity,  and  destined  to  be  extinguished  by  a  kind  of 
exhaustion  of  nervous  influence. 

Paralytic  stupidity  consists  in  an  accidental,  sudden,  complete 
suspension  of  the  intellectual,  moral,  and  instinctive  faculties,  as 
well  as  of  the  corresponding  sensibilities.  It  has  for  its  cause  a 
sudden  and  violent  physical  or  moral  shock  ;  it  is  distinguished  from 
dementia  by  the  rapidity  of  its  appearance,  the  intensity  of  its 
symptoms,  their  frequent  remission  and  exacerbation,  and  espe- 
cially by  the  possibility  of  a  comparative  cure.^ 

Dementia,  says  Esquirol,  is  characterized  by  the  enfeeblement  of 
the  sensibility,  intelligence,  and  will.     Incoherence  of  ideas,  want 
of  intellectual  and  moral  spontaneousness,  are  the  signs  of  this 
affection.     The  man  suffering  from  dementia  has  not  the  faculty  of 
properly  receiving  objects,  of  noticing  their  relations  and  compar- 
ing them,  of  preserving  a  complete  remembrance  of  them  ;  whence 
results  an  impossibility  of  reasoning  correctly.     In  dementia,  he 
adds,  the  impressions  are  too  feeble  ;  it  may  be  because  the  sensi- 
bility of  the  organs,  or  of  the  sensations,  is  weakened ;  or  it  may 
be  because  the  brain  itself  has  not  sufficient  power  to  perceive  and 
retain  the  impression  that  is  transmitted  to  it.     From  this  it  neces- 
sarily results  that  the  sensations  are  languid,  obscure,  and  incom- 
plete.    Individuals  in  dementia  are  not  susceptible  of  a  sufficiently 
strong  attention — objects  only  strike  them  in  an  obscure  and  false 
manner  ;  they  can  neither  compare  nor  associate  ideas,  nor  abstract 
them  ;  the  organ  of  thought  has  not  sufficient  energy — it  is  deprived 
of  the  tonic  force  necessary  to  the  integrity  of  its  functions.     Then 
the  most  incongruous  ideas  succeed  each  other,  following  each  other 
without  connection  and  without  motive  :  the  matter  is  incoherent : 
the  patient  repeats  words  and  entire  phrases  without  attaching  to 
them  distinct  sense  ;  he  speaks,  as  he  reasons,  without  any  con- 
sciousness of  what  he  is  saying.^     The  demented,  in  spite  of  the 
general  decrepitude  of  his  organic  functions,  is  not  freed  from  the 
laws  of  action  and  reaction.     There  are  periods  in  his  existence 
when  the   old  phenomena  of  possession   appear  to  be  renewed. 

'  Ferrus,    le9ons   cliniques    faites   h,        2  Esquirol  de  la  demence,  p.  221. 
Bicetre. 

594 


DEMENTIA.  [§  700. 

When  he  is  agitated,  he  cries  and  tears  his  clothes,  and  may,  per- 
haps, perform  some  dangerous  actions.  The  hallucinations  are 
often  sufficiently  intense  to  provoke  veritable  attacks  of  fury  ;  but 
this  rage  lasts  but  a  little  while  ;  it  is  appeased  like  the  anger  of  a 
child. 

The  demented  from  this  excited  state  falls  back  into  his  ordinary 
automatonism.  He  has  no  more  any  wishes,  hate,  or  tenderness  ; 
he  holds  the  objects  formerly  so  dear  to  him  in  the  greatest  indiffe- 
rence ;  he  sees  his  relations  and  friends  without  pleasure,  and 
leaves  them  without  regret.  He  is  not  disquieted  by  any  privations 
imposed  on  him  ;  and  pleasures  obtained  for  him  gratify  him  but 
little.  What  goes  on  around  him  does  not  affect  him.  The  events 
of  life  are  as  nothing  to  him,  since  he  is  unable  to  attach  any  re- 
membrance, any  hope  to  them  :  indifferent  to  everything,  nothing 
gratifies  him.  He  laughs  and  plays  whilst  other  men  are  afflicted, 
and  weeps  when  all  the  world  are  satisfied.  If  his  position  discon- 
tents him,  he  does  nothing  to  change  it.  His  determinations  are 
vague  and  uncertain :  he  is  a  perfect  automaton,  that  has  not  suffi- 
cient energy  to  be  ungovernable :  his  isolation  is  the  more  neces- 
sary, as  he  yields  himself  to  acts  which  are  the  result  of  the  aboli- 
tion of  conscience,  and  as  he  becomes  but  too  often  the  sport  and 
the  victim  of  those  who  wish  to  take  advantage  of  his  condition.^ 

§  700.  Dementia,  according  to  Falret,  is  a  period,  and  not  a 
true  form  of  mental   unsoundness.      Amona;st  the    de-    ^  ,    ^, 

"^  Falret's 

mented,  who  are  only  the  chronic  insane  arrived  at  an  positiou 

advanced  stage  of  the  disease,  there  are  some  who  are  mentiaisa 

almost  like  maniacs,  and  some  who  remain  motionless,  a"formof* 

like  hypomaniacs.     There  are  others  in  whom  are  seen  mental  un- 

,  ,  ...  soundness. 

some   predominant   ideas — resembling,  in   this  respect, 
monomaniacs  ;  but  it  is  difficult  to  classify  them.     If  they  speak, 
their  unconnected  words  have  no  relation,  and  convey  no  sense  ; 
often  even  this  is  not  due  to  incoherence  alone,  but  to  the  absence 
of  ideas  ;  it  is  a  flow  of  words  without  thoughts. 

If  they  remain  quiet  and  silent,  their  countenances  express 
neither  concentration  nor  passion,  but  dulness  and  stupidity  ;  they 
seem,  at  least  in  extreme  cases,  to  be  ciphers  both  in  understanding 
and  character.     The  observer,  in  fact,  sees  in  them  only  ruins  :   he 

'  See  Morel  sur  les  Maladies  Mentales,  tome  i.  p.  402.     Paris,  1852. 

595 


§  701.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

sees  before  him  all  the  moral  and  intellectual  elements  in  an  almost 
complete  state  of  isolation  from  one  another.  This  separation  is  a 
kind  of  dissolution  which  betrays  the  radical  blow  that  has  been  in- 
flicted upon  the  psychical  forces,  and  destroys  all  hope  of  ever 
seeing  these  elements  united  and  co-ordinate.  If  sometimes  a 
gleam  of  intelligence  sparkles  in  this  chaos,  and  in  the  midst  of 
these  ruins — far  from  consoling,  it  adds  to  the  gloom,  so  manifest 
is  it  that  the  patient  himself  is  neither  its  author  nor  its  witness. 
Everything,  in  fact,  in  dementia,  betrays  an  inability  to  form  ideas, 
to  experience  sentiments,  to  possess  a  will.  It  is  the  tomb  of  rea- 
son, with  the  exception  of  some  flashes  that  mark  it,  and  which  are, 
as  it  were,  the  reflections  of  the  ancient  brilliancy  of  the  mind.^ 
§701.    "Dementia,"    says    Dr.    Ray,    "is   distinguished    from 

general  mania,  the  only  other  affection  with  which  it  is 
Description    ,.    ,  , 

of  demen-  liable  to  be  coniounded,  by  characters  that  cannot  mis- 
la  y  ay.  -^^^^  ^.j^^  least  practised  observer.  The  latter  arises  from 
an  exaltation  of  vital  power,  from  a  morbid  excess  of  activity,  by 
which  the  cerebral  functions  are  not  only  changed  from  their 
healthy  condition,  but  are  performed  with  unusual  force  and  rapid- 
ity. The  maniac  is  irrational  from  an  inability  to  discern  the 
ordinary  characters  and  relations  of  things,  amid  the  mass  of  ideas 
that  crowd  upon  his  mind  in  mingled  confusion  ;  while  in  dementia 
the  reasoning  faculty  is  impaired  by  a  loss  of  its  ordinary  strength, 
whereby  it  not  only  mistakes  the  nature  of  things,  but  is  unable, 
from  want  of  power,  to  rise  to  the  contemplation  of  general  truths. 
The  reasoning  of  the  maniac  does  not  so  much  fail  in  the  force  and 
logic  of  its  arguments,  as  in  the  incorrectness  of  its  assumptions  ; 
but  in  dementia  the  attempt  to  reason  is  prevented  by  the  paucity 
of  ideas,  and  that  feebleness  of  the  perceptive  powers,  in  conse- 
quence of  which  they  do  not  faithfully  represent  the  impressions 
received  from  without. 

"  In  mania,  when  the  memory  fails,  it  is  because  new  ideas  have 
crowded  into  the  mind,  and  are  mingled  up  and  confounded  with  the 
past ;  in  dementia  the  same  effect  is  produced  by  an  obliteration  of 
past  impressions  as  soon  as  they  are  made,  from  a  want  of  sufficient 
power  to  retain  them.     In  the  former  the   mental  operations  are 

'  See  Etudes  cliniques  sur  1' Alienation  Men  tale,  par  M.  Falret,  p.  541.  Paris, 
1854. 

596 


DEMENTIA.  [§  701. 

characterized  by  hurry  and  confusion ;  in  the  latter  by  extreme 
slowness  and  frequent  apparent  suspension  of  the  thinking  process. 
In  the  former,  the  habits  and  affections  undergo  a  great  change, 
becoming  strange  and  inconsistent  from  the  beginning,  and  the  per- 
sons and  things  that  once  pleased  and  interested  being  viewed  with 
indifference  or  aversion.  In  the  latter,  the  moral  habits  and 
natural  feelings,  so  far  as  they  are  manifested  at  all,  lose  none  of 
their  ordinary  character.  The  temper  may  be  more  irritable,  but 
the  moral  disposition  evinces  none  of  that  perversity  which  charac- 
terizes mania. 

"  In  dementia,  the  mind  is  susceptible  of  only  feeble  and  transi- 
tory impressions,  and  manifests  little  reflection  even  upon  these. 
They  come  and  go  without  leaving  any  trace  of  their  presence 
behind  them.  The  intention  is  incapable  of  more  than  a  momen- 
tary effort,  one  idea  succeeding  another  with  but  little  connection 
or  coherence."^ 

J  Ray  on  Insanity,  pp.  292,  293. 

597 


^  702.]       MENTAL    UXSOUNDXESS    CONSIDEEED   PSYCHOLOGICALLY. 


CHAPTER  VII 


DELIRIUM. 


I.  Gexeeal  Delieittm. 


Characteristics  of,  §  702. 

SjstematizatioxL  of  frenzied  concep- 
tions a  peculiar  feature  of  delirium, 
§703. 

Puerperal  mania,  §  704. 

Explanation  of  delirium  by  Griesiuger, 
§  705. 

II.  Partial  Delirium. 

1.  Mania  or  amentia  occulta. 

Tlie  term  first  used  by  Platner,  §  706. 


Autliorities  countenancing  tlie  theory, 
§  707. 

2Iania  occulta  not  a  defence  unless  in- 
sanity be  proved  aliunde,  §  708. 

Mania  occulta  distinct  from  mania  trans- 
itoria,  §  709. 

2.  2Iania  transitoria. 
Mania   transitoria   is    a  sudden   insane 

fury,  §  710. 
Observations  on   the   subject   by   De- 

vergie,  §  711. 
Dangers  attending  recognition  of  this 

mania,  §  718. 


I.     GEXEEAL   DELIRIUM. 

§  702.  What  distinguishes  delirium  from  the  delusions  of  the 
Charac-  senses  is  that  in  the  latter  the  sensational  faculties  are 
teristics  of.  really  acted  upon,  subjectively,  though  in  an  eccentric 
manner,  while  in  the  former  the  interior  reproductive  activity  of 
the  brain  predominates  in  the  generation  of  phantoms.^  Con- 
sciousness is  disturbed  at  the  same  time,  and  there  is  incoherent 
speaking  and  action,  as  if  it  were  a  waking  dream.  External  ob- 
jects are  perceived  indistinctly,  or  not  at  all,  and  on  the  whole  there 
is  the  less  delirium,  the  more  activity  there  is  in  the  peripheric 
nerves,  for  which  reason  hydrocephalic  children  generally  relapse 
into  delirium  when  they  cease  vomiting.  The  external  senses  may, 
however,  be  at  the  same  time  open  to  perceptions,  and  may  convey 
them  ;  but  the  patient  is  so  controlled  by  his  internal  dreams  as  to 
act  as  if  they  did  not  exist.  Hence  there  is,  accordingly,  a  pre- 
dominance of  dreams,  which  deprives  the  individual  of  the  possi- 
bility of  the  power  of  maintaining  a  corresponding   relation  with 

'  Haj-gen,  vol.  ii.  p.  707  ;  Schiirmayer,  etc.,  §  555. 

598 


GENERAL   DELIRIUM.  [§  703. 

the  external  world.  Delirium  may,  therefore,  be  defined  as  a  state 
of  dreams  brought  on,  not  by  sleep,  but  by  disease.  Like  a  dream, 
a  delirium  may  become  active,  the  beginning  of  which  is  the  speak- 
ing delirium.  Where  a  crime  or  misdemeanor  proceeds  from  a 
delirium,  there  is  no  freedom  of  agency,  i.  e.,  the  action  is  to  be 
regarded  as  the  product  of  insanity. 

§  703.  The  most  remarkable  phenomenon  of  mental  unsound- 
ness Cwe  translate  from  MoreH  is  unquestionably  deli- 

.  .  .  ^  "^  Systemiza- 

rium,  whether  it  shows  itself  in  words  or  deeds.       De-   tionof 

lirium,  considered  as  an  essential  symptom  of  insanity,   concfep- 
possesses  a  type  of  continuity,  connects  itself  with  lesions   ^^^^^^  ^J^^' 

J-  .  culiar  fea- 

of  a  special  nature,  and  presents  altogether  the  elements   ture  of  de- 

„  .  .       .  p    ■.       f,         .    ,  .  lirium. 

01  a  certain  systemization  oi  the  irenzied  conceptions. 
This  systemization  alone  gives  to  the  delirium  which  produced  it  a 
particular  stamp.  It  shows  what  has  been  called  the  fixing  of 
ideas,  and  that  logic  peculiar  to  the  insane,  that  leads  them  to  the 
justification  of  the  falsest  conceptions  and  the  most  deplorable  acts. 
If  it  were  otherwise,  who  could  have  flattered  himself  that  he  had 
escaped  insanity  ?  for  we  have  all  suffered  in  a  more  or  less  degree 
the  phenomena  of  delirium.  We  are  delirious  during  fever,  under 
the  influence  of  spirituous  liquors,  as  also  of  some  narcotics.  Febrile 
delirium  is  a  generic  term  comprising  the  universality  of  abnormal 
phenomena  which  can  in  a  more  or  less  permanent  manner,  in  a 
given  disease,  hinder  the  association  of  our  ideas,  or  which  may 
prevent  that  association  in  the  way  of  producing  illusions  and  hal- 
lucinations of  all  kinds. 

The  word  insanity  is  likewise  a  generic  expression  for  pointing 
out  the  universality  of  the  abnormal  phenomena  which,  under  the 
united  influence  of  physical  and  psychical  causes,  can,  in  a  more  or 
less  permanent  manner,  pervert  our  manner  of  feeling  and  seeing, 
or,  in  other  words,  bewilder  our  understanding. 

In  this  point  of  view,  febrile  delirium  and  the  delirium  of  mad- 
ness are  the  same,  inasmuch  as  deliriums  are  identical ;  but  it  is 
excessively  important  not  to  confound  the  symptoms  with  the  dis- 
eases that  produced  them. 

An  invalid  suffering  from  an  acute  disease  approaches  the 
period  of  convalescence.  At  the  approach  of  night,  or  whenever 
he  shuts  his  eyes,  fantastical  apparitions  besiege  him.  He  himself 
recognizes  that  these  painful  impressions  are  the  results  of  his  fever, 

599 


§  703.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

or,  if  he  does  not  recognize  it  at  the  first  glance,  he  receives  the 
explanations  of  those  surrounding  him.  He  raves  before  sleeping, 
and  it  is  not  strange  if  he  still  raves  under  the  influence  of  the  de- 
pression as  well  as  of  exaltations  of  the  organs  of  the  senses.  Upon 
awaking,  he  makes  known  to  his  relations  and  friends  the  fatiguing 
sensations  that  his  dreams  have  produced,  and  seems  to  search  with 
eagerness  for  explanations  to  reassure  him.  As  he  returns  to  con- 
sciousness, the  motives  of  his  judgment  become  more  certain,  the 
tumult  of  his  bewildered  senses  is  appeased,  the  nights  are  quieter, 
and,  when  convalescence  follows  an  ascending  course,  there  only 
remains  a  vague  and  confused  remembrance  of  the  stormy  scene 
through  which  he  has  passed. 

Things,  unfortunately,  do  not  so  proceed  when  the  delirium  has  a 
tendency  to  the  permanent  or  chronic  form  ;  and  it  is  this  which 
makes  the  essential  difference  between  properly  called  febrile  de- 
lirium and  maniacal  delirium.  There  may  be  a  period  when  these 
two  deliriums  possess  the  same  external  characteristics  on  account 
of  the  similitude  of  the  perverted  sensorial  phenomena  ;  but,  when 
the  phenomenon  of  delirium  is  produced  by  a  maniacal  state,  it  is 
then  a  situation  which  often  passes  unnoticed  in  the  beginning,  but 
which,  as  a  diagnostic  element,  it  is  of  the  highest  importance  to 
describe. 

This  situation,  so  painful  for  the  friends,  first  betrays  itself  in  a 
perversion  of  the  feelings,  and  in  a  complete  change  in  the  charac- 
ter and  habits  of  the  patient.  He  becomes  impatient  and  fretful ; 
speaks  passionately,  and  in  an  unaccustomed  tone.  He  often  loses 
the  feeling  of  modesty,  whatever  may  be  his  age  or  education. 
His  friends  and  relations  attribute  these  distressing  phenomena  to 
the  effect  of  the  primitive  disease  which  shows  itself  with  all  the 
characteristics  of  an  ordinary  febrile  delirium.  But  soon  another 
more  trying  phenomenon  shows  itself,  greatly  aggravating  the 
case.  The  care  bestowed  upon  the  sick  person,  the  marks  of 
the  liveliest  affection  which  are  shown  to  him,  are  repulsed,  some- 
times with  irony  and  disdain,  and  sometimes  with  passion  and  fury. 
In  ordinary  diseases  the  sick  person  attaches  himself  with  happiness 
to  everything  that  tends  to  recall  him  to  existence.  He  hears  with 
emotion  of  the  different  stages  of  his  disease,  and  of  the  delirium 
which  was  its  consequence  ;  he  speaks  often  of  its  causes,  deplores 
its  effects,  and  makes  innumerable  excuses  for  any  malignant  or 
600 


GENERAL   DELIRIUM.  '  [§  703. 

obscene  words  which  may  have  escaped  him  during  the  delirium. 
The  patient,  on  the  contrary,  in  whom  the  insanity  is  confirmed, 
will  not  admit  that  he  was  delirious.  He  sustains  the  errors  of  his 
imagination,  and  takes  them  for  realities.  The  hallucinations  and 
delusions  of  all  sorts  which  he  has  felt,  and  which  still  beset  him, 
fortify  him  in  his  madness.  Still  more,  in  this  he  systematizes  his 
delirium,_^and  whatever  intellectual  energy  is  left  is  employed  by 
him  in  establishing,  upon  the  basis  of  a  desperate  logic,  motives  for 
the  new  existence  which  he  is  just  commencing.  Several  authors, 
basing  themselves  on  the  fact  that  the  delirium  of  insanity  is  often 
found  unaccompanied  by  fever  (^delirium  sinefebre)^  have  thought 
that  the  train  of  psychological  phenomena  that  accompanies  the  deli- 
rium of  acute  diseases  is  sufficient  to  mark  out  the  difference  between 
these  primitive  conditions.  This  appreciation,  though  very  true  on 
one  side,  may  nevertheless  lead  us  into  error.  We  willingly  admit 
that  the  delirium  of  acute  diseases  is  accompanied  with  redness  of 
the  cheeks  and  turgidity  of  the  face.  The  expression  is  troubled, 
and  there  are  marked  changes  in  the  circulation.  The  eyes  are 
brilliant,  respiration  often  painful,  and  the  excretions  involuntary  ; 
the  language  takes  an  unaccustomed  accentuation.  The  sick  per- 
son expresses  himself  sometimes  with  vivacity,  sometimes  with  great 
slowness ;  his  sentences  and  his  words  are  badly  articulated  ;  he 
speaks  sometimes  to  himself,  and  at  other  times  deep  drawn  sighs 
are  the  only  manifestations  of  intellect.  But  these  phenomena  are 
also  to  be  met  with  in  the  delirium  of  insanity,  and  especially  in  the 
first  stages  of  this  disease.^ 

Privation  of  stimulants,  says  Morel,  and  the  employment  of 
opiates,  generally  suffice  to  restore  reason  to  those  persons  who  are 
generally  not  considered  as  insane  unless  afflicted  with  a  special 
chronic  subjection  to  delirium  tremens;  even  when  the  fatal  con- 
sequences resulting  from  the  abuse  of  spirits  impress  upon  the 
delirium,  which  is  its  consequence,  a  form  of  continuity  which  has 
by  some  authors  been  pointed  out  under  the  name  of  drunken 
madiiess.  Errors  made  in  this  respect  may  be  productive  of  grave 
consequences  for  those  who  are  the  victims  of  them.  The  follow- 
ing is  an  example  : — 

'  See  Etudes  Cliniques  des  Maladies  Mentales,  etc.  M,  Morel,  tome  i.  p.  124. 
Paris,  1852. 

601 


§  704.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSTCHOLOGHCALLY. 

In  the  month  of  May,  1850,  there  was  brought  to  the  asylum  of 
Moreville  a  sick  person,  whom  a  physician's  certificate  represented 
as  a  dangerous  madman.  We  observed  at  first  in  him  a  very  great 
disorder  of  ideas,  and  a  peculiar  difficulty  of  expressing  himself. 
The  face  was  pale,  and  the  lips  agitated  with  convulsive  movements, 
and  there  was  a  general  trembling  of  the  limbs.  The  employment 
of  opiates  and  a  bath  soon  removed  these  appearances,  and  the 
next  day  we  had  a  man  in  the  perfect  possession  of  his  faculties 
before  us.  The  error  in  this  case  had  arisen  from  the  fact  that  the 
physician's  certificate  had  been  given  without  a  proper  examination 
of  all  the  causes  necessary  to  a  correct  judgment.  If  he  had,  in- 
deed, gone  back  to  the  appreciation  of  the  causes,  he  would  have 
found  out  that  very  grave  dissentions  existed  between  two  brothers, 
of  whom  one  was  this  supposed  madman,  who,  endowed  with  a  vio- 
lent but  feeble  character,  after  having  yielded  in  the  strife  of  dis- 
cussion, ordinarily  sought  to  console  himself  in  alcoholic  libations. 
It  was  after  having  swallowed  a  too  abundant  ration  that  a  family 
quarrel  brought  its  contingent  of  trouble  to  the  natural  excitement 
that  controlled  him,  and  resulted  in  delirium  tremens^  which,  if  it 
had  been  better  appreciated  in  its  origin  and  effects,  would  not  have 
brought  this  person  to  an  insane  asylum,  and  compromised  in  a  cer- 
tain degree  his  social  position.^ 

§  704.  Puerperal  mania  deserves  a  distinct  notice,  not  merely 
Puerperal  from  its  distinctive  physical  origin,  but  from  its  distinc- 
mania.  ^-^g  features,  which  sometimes  are  erotic  ravings,  some- 

times even  homicidal  violence.^  A  "  homicidal  propensity,"  as  we 
are  told  by  Dr.  Taylor,  "  towards  their  offspring,  sometimes  mani- 
fests itself  in  women  soon  after  parturition.  It  seldom  appears 
before  the  third  day,  often  not  for  a  fortnight,  and  in  some  instances 
not  until  several  weeks  after  delivery.  The  most  frequent  period 
is  at  or  about  the  commencement  of  lactation,  and  between  that  and 
the  cessation  of  the  lochia."  According  to  Esquirol,  it  is  generally 
attended  by  a  suppression  of  the  lochia  and  milk.  The  symptoms 
do  not  differ  from  those  of  mania  generally,  but  it  may  assume  any 
of  the  other  forms  of  insanity  ;  and  in  one-half  the  cases  it  may  be 
traced  to  hereditary  tendency.     According  to  Dr.  Burroughs,  there 

'  Morel,  sur  les  Maladies  Mentales,         ^  gee  supra,  §  155. 
tome  i.  p.  146.     Paris,  1852. 
602 


GENERAL   DELIRIUM.  [§  705. 

is  delirium,  with  a  childish  disposition  for  harmless  mischief.  The 
woman  is  gay  and  joyous,  laughing,  singing,  loquacious,  inclined  to 
talk  obscenely,  and  careless  of  everything  around.  She  imagines 
that  her  food  is  poisoned.  She  may  conceal  the  suspicion,  and 
merely  avoid  taking  what  is  offered  to  her.  She  can  recognize 
persons  and  things,  and  can,  though  perhaps  will  not,  answer  direct 
questions.  Occasionally  there  is  great  depression  of  spirits,  with 
melancholy.  These  facts  are  of  some  importance  in  cases  of  al- 
leged child-murder.  This  state  may  last  a  few  hours,  or  for  some 
days  or  weeks,  and  we  are  told  by  Dr.  Hartshorne,  the  accom- 
plished American  editor,  sometimes  for  months  and  years ;  but  it 
generally  goes  off  within  a  few  months,  if  not  earlier.  "  The  mur- 
der of  the  child  is  generally  either  the  result  of  a  sudden  fit  of  de- 
lirium, or  of  an  uncontrollable  impulse,  with  a  full  knowledge  of 
the  wickedness  and  illegality  of  the  act,  so  that  the  legal  test  of 
responsibility  from  a  knowledge  of  right  and  wrong  cannot  be 
applied  to  such  cases.  Mothers  have  been  known,  before  the  per- 
petration of  the  murder,  to  request  their  attendants  to  remove  the 
child.  Such  cases  are  commonly  distinguished  from  deliberate 
infanticide  by  there  being  no  attempt  at  concealment,  nor  any  de- 
nial of  the  crime  on  detection.  Several  trials  involving  a  question 
of  puerperal  mania  have  been  decided  generally  in  favor  of  the 
plea  within  the  last  few  years.  Dr.  Ashwell  has  remarked  that 
undue  lactation  may  give  rise  to  an  attack  of  mania,  under  which 
the  murder  of  the  offspring  may  also  be  perpetrated.^  Females 
in  the  j^re^?ian^  state  have  been  known  to  perpetrate  the  crime 
apparently  from  some  sudden  perversion  of  their  moral  feelings. 
I  am  not  aware  that  a  plea  of  exculpation  on  the  ground  of 
insanity  has  been  admitted  in  this  country  under  these  circum- 
stances."^ 

&   705.    "  The  fundamental  affection  in  the  maniacal   Expiana- 

y  .  .  n        tion  of 

states,"   writes  Griesinger,   "  consists  chiefly  in  a  de-   delirium, 
rangement  of  the  motory  side  of  the  soul-life,  the  effort, 

1  Diseases  of  Women,  732.  pp.  594,  595.      See  as  to  the  legal  re- 

2  See  case  Ann.  d'Hyg.,  1831,  i.  374.  sponsibility  in  such  cases,  supra,  §§ 
For  an  able  analysis  of  the  subject  146-162.  See  also  Dr.  Storer's  excel- 
of  puerperal  insanity,  by  Dr.  Reid,  lent  treatise  on  Insanity  in  Women, 
see   Journ.   Psychol.  Med.,  1834,   pp.  Boston,  1871. 

128,  284.   Taylor's  Med.  Jurisprudence, 

603 


§  705.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

and  of  such  a  nature,  that  the  latter  having  become  free,  unre- 
strained, and  considerably  increased,-  the  individual  consequently 
feels  impelled  to  give  some  outward  manifestation  of  his  powers. 

"  From  this  tendency  to  an  exaggerated  psychical  movement 
from  within  outwards,  from  this  augmented  energy  and  more  ex- 
tended range  of  the  efforts,  from  this  extravagance  of  the  will, 
which  constitute  the  centre-point  of  maniacal  derangement,  spring, 
as  from  a  common  source,  those  two  forms  which  in  their  nature 
and  mode  of  manifestation  are  sometimes  so  essentially  distinct. 
On  the  one  hand,  this  necessity  for  the  manifestation  of  the  in- 
creased mental  activity  may  manifest  itself  directly,  being  propa- 
gated by  a  continuous  impulse  to  the  organs  of  motion,  and  there 
exploding,  as  it  were  ;  whence  there  ensues  a  state  of  great  physi- 
cal restlessness,  the  patient  keeping  his  muscles  in  constant  play 
(speech,  gestures,  movements  of  the  body  generally),  and  perpetu- 
ally speaking,  shouting,  weeping,  dancing,  leaping,  storming,  etc. ; 
and  thus  is  constituted  the  form  generally  called  mania, 

"  Or,  on  the  other  hand,  the  direct  result  of  this  more  free  de- 
velopment of  volition  may  be  the  development  of  inordinate  vanity, 
increased  self-sensation,  and  consequently  a  constant  over-estimation 
of  self;  and,  as  attempts  at  explanations  of  this  disposition,  delirious 
conceptions  arise,  which  now  become  dominant  over  the  mind,  and 
take  the  increased  activity  of  the  will  into  their  service. 

"  The  patient  has  now  no  longer  to  do  with  mere  general  mani- 
festation of  energy ;  but  this  excitation  of  the  motory  side  of  the 
soul-life  is  transformed  into  extravagant  volition  in  the  form  of 
particular  delirious  conceptions,  for  the  most  part  with  much 
greater  outward  calm.  As  soon  as  such  a  condition,  accompanied 
by  delirious  conceptions  arising  from  inordinate  self-conceit,  has  in 
any  degree  become  fixed,  there  is  founded  a  state  of  mental  de- 
rangement infinitely  more  serious  than  that  of  simple  mania.  In 
short,  Avhile  in  the  latter  form  the  patient  is  freed  from  his  exagge- 
rated impulses  by  their  outward  manifestation,  and  again,  as  we 
shall  soon  show,  in  the  pure  form  of  mania,  the  whole  disease  is 
confined  to  a  relatively  external  sphere  of  the  mental  life  without 
profoundly  involving  the  individuality,  it  is  the  essential  character- 
istic of  this  second  form  of  mania,  which  we  designate  monomania, 
that  delirious  conceptions,  false  ideas,  which  arise  from  over-esti- 
mation of  self,  and  therefore  relate  only  to  the  special  self  of  the 
604 


PARTIAL    DELIRIUM.  [§  707. 

patient,  appear,  which  immediately  involve  the  ego  itself,  and, 
therefore,  the  innermost  part  of  the  individuality  becomes  alienated 
and  falsified."^ 

II.   PARTIAL   DELIRIUM. 

1.  Mania  or  amentia  occulta. 

§  706.  This  leads  to  the  discussion  of  the  so-called  amentia 
occulta,  or  concealed  insanity  ;  a  phase  of  disease  which 
has  been  the  cause  of  much  perplexity  to  the  courts,  as  first  used 
well  as  of  much  animated  controversy  among  psycholo-  ^^  Pi^tner. 
gists.  Is  there  such  a  thing  as  latent  insanity,  Avhich  is  undistin 
guishable  by  any  of  the  usual  psychological  tests  until  the  period 
of  the  commission  of  the  controverted  act  ?  This  was  affirmed  by 
Plainer,  by  whom  the  term  was  first  used.  "  Est  igitur  amentia 
occulta  nisus  et  conatus  animi  oppressi  ad  actionem  violentam,  banc 
actionem  secreto  appetentis  et  molientis,  tanquam  suae  oppressionus 
levamen  et  liberationem."  Two  cases  are  cited  by  him  as  illustra- 
tions. The  first  is  that  of  a  man  who  was  good-natured,  but  super- 
stitious, hypochondriac,  and  of  weak  intellectual  powers.  He 
conceived  the  idea  that  he  was  the  object  of  persecution,  and  of 
various  attempts  to  bewitch  and  to  poison  by  deadly  perfumes  ; 
and  he  killed  the  supposed  oifender,  declaring  that  he  would 
rather  be  executed  than  to  live  as  the  victim  of  such  enmity.  Here, 
as  Liman  well  remarks,  there  was  no  amentia  occulta,  but  a  case  of 
insanity,  exhibiting  itself  antecedently  with  great  plainness  in  the 
common  phase  of. insane  delusion  as  to  persecution.  The  other 
proof-case  given  by  Platner  is  that  of  an  alleged  pyromaniac  girl  of 
seven  years,  whose  irresponsibility  on  other  grounds  was  abundantly 
shown. 

§  707.    Undoubtedly  some  countenance  is  given  to  this  theory 
by    Dr.    Maudsley,^   by   Dr.    Castelnau,^   and   by   Dr. 

T-        .     .  .       ,     .  .  .  ,  •  Authorities 

Jarvis,*  in  their  assumption  that  tliere  is  such  a  thing  as    couuten- 
mania  which  is  "  instantaneous,  temporary,  fleeting,  a    theory.*  ^ 
mental  disorder,  which  breaks  out  suddenly,  like   the 
sudden  loss  of  sense  in  some  physical  diseases,  and  the  subject 

'  Griesinger's  Mental  Pathol.,  Syden.  xlv.   p.  219,  cited  by  Dr.  Jarvis,  in  a 

ed.  (1871),  §  130.  learned   appendix   to  Andrews'  Trial, 

2  Jour.  Ment.  Sc.  ix.  335.  p.  266. 

3  Annales  d'Hygiene  Publique,  etc.,         ^  Andrews'  Trial,  p.  266. 

t)05 


§  708.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

is  urged  in  a  moment  to  automatic  acts,  which  could  not  have 
been  foreseen."  This  phase,  however,  belongs  distinctively  to  the 
next  head.^ 

§  708.  We  certainly  can  conceive  of  insanity  that  is  latent  ex- 
Mania  oc-  c*^P^  ^^  some  parenthetical  period  when  it  bursts  out  into 
cuita  not  a    juania,  and  then  retires  again  from  observation  ;  but  as 

aefence  un-  '  '^  ' 

less  in-         to  this,  two  remarks  are  to  be  made, 
proved  First.   Human  law,  whether  moral  or  positive,  can 

aiun  e.  ^^^  draw  its  conclusions  from  overt  acts.  We  can  con- 
ceive of  an  emigrant,  for  instance,  who  in  intention  is  a  citizen ; 
but  until  he  declares  his  intention,  and  is  naturalized,  he  is  not 
legally  to  be  treated  as  a  citizen.  We  can  conceive  of  a  person  in- 
tending to  give  money  to  a  charitable  object,  but  until  he  evidences 
his  intention  by  will  or  deed,  the  act  is  not  the  subject  of  legal 
cognition.  We  can  conceive  of  a  person  signing  a  paper  under 
duress  ;  but  to  make  the  defence  good,  duress  must  be  proved.  So 
we  can  conceive  of  a  person  irresponsible  through  insanity,  but,  if 
so,  the  insanity  must  be  proved.  It  is  true  that  it  may  be  inferred 
from  an  act  that  in  itself  is  motiveless  and  passionless,  especially 
when  there  is  evidence  of  superinducing  causes  of  insanity.  But, 
when  the  act  has  motive,  Avhether  that  motive  be  passion  or  interest, 
and  when  the  act  is  intelligent,  then  there  can  be  no  defence  of 
mania  or  dementia  occulta.  Insanity  must  be  proved  alitinde  as  a 
prior  state,  involving  derangement  of  mind. 

Secondly.  To  admit  such  a  disease  as  a  defence  would  be  to 
make  criminal  justice  powerless.  Not  only  is  the  disease  (if  the 
title  be  correct)  incapable  of  diagnosis,  but  there  is  no  case  of  crime 
to  which  the  defence,  if  good,  may  not  be  applied.  The  insensi- 
bility of  the  act  by  itself  cannot  prove  the  disease,  for  there  is  no 
crime,  no  matter  how  astute  the  perpetrator,  but  betrays,  as  will 
hereafter  be  seen,  some  incoherence  in  its  preparation ;  and  no 
maxim  is  more  trite  than  that  crirue  is  in  itself  folly.  Folly,  inco- 
herence of  some  kind,  if  not  barbarous  ferocity,  are  incident  to  all 
crimes  ;  and  if  to  these  it  is  permitted  to  tack  amentia  occulta — an 
insanity  of  which  the  only  proof  is  the  nature  of  the  act — then  there 
is  no  prosecution  of  crime  to  which  such  insanity  cannot  be  suc- 
cessfully pleaded. 

1  Infra,  §  710. 

606 


MANIA    TRANSITORIA.  [§  710. 

Tliirdly.  The  assumption  rests,  in  practice,  on  a,petit{o  prineipii. 
There  is  no  case  of  occult  insanity  mentioned  in  the  books  in  which 
patent  proof  of  prior  insanity  is  not  oifered  to  show  occult  disease. 
The  illustrations  of  this  in  the  cases  cited  by  Platner  have  already 
been  given.  A  scrutiny  of  other  cases  cited  by  the  advocates  of 
this  theory  will  produce  a  similar  result.  In  one  case  the  "  oc- 
cult" disease  burst  out  in  the  state  of  sleep-drunkenness,  a  condi- 
tion in  which,  as  has  been  shown,  the  mind  is  substantively  disor- 
dered. In  another,  hereditary  insanity  was  proved ;  in  another, 
epilepsy ;  in  another,  a  chronic  lesion  of  the  brain ;  in  another, 
hypochondria.  The  fallacy  of  the  position  may  be  seen  by  the 
following  statement :  occult  insanity  is  shown  by  inductive  proof 
of  a  prior  insane  state,  but,  when  there  is  inductive  proof  of  a  prior 
insane  state,  insanity  ceases  to  be  occult. 

§  709.    Amentia  occulta  has  sometimes,  as  has  been  noticed, 
been  blended  with  mania  transitoria,  or  acute  transitory    j/ania  oc- 
raania.      This  special  mania,  however,  does  not  neces-    cwZtedis- 

.,        .,  1-T11        •  ••  tinct  from 

sarily  imply,  and  indeed  by  its  definition  excludes,  a   mania 
prior  state  of  occult  insanity.      Mania  transitoria  will 
be,  therefore,  independently  considered. 

2.  Mania  transitoria. 

.    §  710.  Ma7iia  transitoria,  or  furor  transitorius,  assumes  a  sud- 
den, parenthetical,  transient,  motiveless  outburst  of  in- 
sane fury  in  a  person  previously  and  subsequently  sane,    franltforia 
It  is,  therefore,  to  be  distinguished  from  occult  insanity    !^  ^  sudden 

,  .  ,  "^     insane  fury. 

(amentia  occulta),  which  has  just  been  noticed,  in  which 
there  is  prior  insanity  which  is  latent  and  concealed  ;  from  "  moral" 
insanity,  as  it  is  called,  which  assumes  a  permanent  derangement 
of  the  moral  as  distinguished  from  the  intellectual  faculties ;  and 
from  the  so-called  special  manias,  such  as  the  homicidal  mania, 
kleptomania,  and  pyromania,  which  involve  permanent  constitutional 
impulses  to  particular  abnormal  acts.  Mania  transitoria  not  only 
does  not  involve,  but  from  its  term  excludes  all  chronic  insane 
frames,  or  states,  or  impulses.  It  is  from  its  very  nature  sudden, 
causeless,  exceptional,  parenthetic,  and  vehemently  antagonistic  to 
the  patient's  usual  line  of  character  and  type  of  mind. 

607 


§  711.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGIC  ALLY. 

§  711.  Upon  the  question  in  its  general  relations  we  have  some 
excellent  observations  read  by  M.  Devergie  before  the 
tion^on^the    Imperial  Academy  in  1859. 
subject  by  u  ]v^q  incentives  to  the  deed,  either  in  passions  not  suffi- 

Devergie.  _  '     _  '^      _ 

ciently  repressed,  or  in  an  acquired  fixed  idea ;  antece- 
dents and  manners  irreproachable  ;  absence  of  hallucinations  ;  out. 
break  of  insanity  manifested  by  a  criminal  act,  and  instantaneous 
return  to  reason  as  soon  as  the  deed  was  accomplished — these  are, 
according  to  us,  the  characters  of  transitory  insanity.  Neverthe- 
less, the  word  transitory/,  perfectly  just  for  the  world  in  general, 
in  the  sense  that  the  madness  is  but  transient,  though  the  deed 
done  be  of  the  most  criminal  description,  does  not  appear  to  me 
sufficiently  exact  for  the  physician.  Individuals  of  the  character 
described  ought  not  to  be  considered  of  sound  mind  when  an  idea 
of  crime  has  suddenly  risen  within  them,  when  this  idea  has  con- 
stituted with  them  a  dominant  and  irresistible  thought,  stronger 
than  tJie  Me,  stronger  than  the  will. 

"  Antecedents  of  family,  eccentric  acts  of  social  life,  propensities, 
tastes  more  or  less  perverted,  tendencies  to  moodiness,  ideas  of 
suicide,  are  often  manifested  many  years  before  the  explosion  of 
the  irresistible  criminal  idea.  So  that  to  say  that  tJie  jjassage  from 
reason  to  insanity  can  be  hasty  or  instantaneous,  in  the  opinion  of 
the  physician  is  to  commit  an  error.  This  state  has  prodromata,  as 
every  malady  has  ;  and,  according  to  us,  if  these  ijrodromata  do 
not  exist,  it  would  be  impossible  to  see  in  the  reported  criminal  act 
an  act  of  insanity. 

"  Moreover,  M.  Lelut^  has  said,  with  much  truth,  in  regard  to 
this  species  of  insanity,  that,  at  its  commencement,  and  in  the  men- 
tal tendencies  which  are  the  predisposing  or  constitutional  cause  of 
it,  insanity  is  still  reason,  as  reason  is  already  insanity  (la  folie  est 
encore  de  la  raison,  comme  la  raison  est  dej^  de  la  folie).  This 
constitutes,  for  the  physician,  one  of  the  first  elements  towards  the 
solution  of  the  question. 

"  A  second  datum  of  great  interest,  in  a  medical  and  moral  point 
of  view,  is  the  disproportion  which  exists  between  the  enormity  of 
the  oflence  and  the  motive  or  interest  which  has  led  to  its  com- 
mittal. 

•  Recherches  des  Analogies  de  la  Folie  et  de  la  Raison,  i\  la  suite  de  son 
ouvrage  Le  Ddmon  de  Socrate,  p.  318. 

608 


MANIA   TRANSITORIA.  [§  711. 

"  If  we  examine  all  the  criminal  processes  which  have  been  in- 
stituted on  the  occasion  of  similar  offences,  and  which  have,  more- 
over, been  diversely  adjudicated  upon,  but  which,  for  the  physician, 
have  been  acts  of  madness,  it  will  be  seen  that  the  motive  which  led 
to  the  committal  of  the  deed  was  not,  so  far  as  its  consequences 
were  concerned,  in  relation  with  the  action  itself.  In  other  words, 
the  accused,  in  committing  the  crime,  had  in  prospect  the  scaffold ; 
and,  even  in  the  case  of  impunity  from  it,  he  derived  frequently  no 
advantage,  material  or  moral,  from  the  act  which  he  had  committed. 

"  Now,  every  important  act  of  a  man  of  sound  mind  has  one  end. 
That  end  is  the  attainment  of  an  advantage  proportionate  to  the 
consequences  of  tlie  act.  When  an  individual  stakes  his  life  upon 
it,  he  hopes  to  obtain  in  exchange  material  or  moral  advantages, 
more  or  less  considerable,  and  by  which  he  expects  to  profit  largely. 

"If  it  be  asked  what  are  the  conditions  under  which  the  reputed 
criminal  act  is  performed,  we  are  at  once  struck  with  the  want  of 
foresight  which  has  preceded  and  accompanied  its  fulfilment.  Nei- 
ther the  moment  of  the  deed  nor  the  mode  by  which  it  has  been 
effected  has  been  the  object  of  any  premeditation.  Moreover,  the 
deed  has  probably  been  committed  at  the  most  unfavorable  moment, 
although  the  accused  had  had  a  thousand  opportunities  of  effecting 
it  in  secret. 

"  Far  from  avoiding  justice,  the  insane  individual,  in  other  re- 
spects an  upright  man,  comprehending  quickly  the  enormity  of  the 
crime  that  he  has  involuntarily  committed,  occasionally,  nay,  most 
commonly,  gives  himself  up  to  justice.  In  effect,  the  dominant 
notion  has  hastily  ceased  to  exist ;  moral  freedom  has  resumed  its 
empire,  and  the  so-called  criminal  has  ceased  to  be  mad. 

"  If  investigation  is  extended  to  the  mental  state  of  the  paternal 
or  maternal  ancestors  of  the  accused,  it  is  common  to  find  that  one 
or  more  members  of  the  family  have  committed  suicide,  or  have  had 
a  more  or  less  prolonged  attack  of  insanity. 

"  Lastly  (and  this  is  a  criterion  of  great  value),  if  we  investi- 
gate the  offence  from  two  different  points  of  view,  the  hypothesis  of 
a  criminal  act,  and  the  hypothesis  of  an  act  of  folly,  in  order  that 
either  view  should  be  established,  it  is  necessary  that  it  should  ex- 
pose all  the  facts  without  effort,  while  the  opposite  view  should 
present  a  series  of  improbabilities  which  at  once  strike  the  judg- 
VOL.  I.— 39  609 


§  711.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

ment  and  are  inconsistent  with  experience.  The  last  method  leads 
the  physician  with  the  greatest  certainty  to  a  right  apprehension  of 
the  facts  ;  by  it  doubt  is  dissipated,  conviction  arrived  at,  and  the 
conscience  relieved,"^ 

Mania  transiforia  was  set  up  as  a  defence  in  Guiteau's  case, 
which  has  already  been  fully  discussed,  and  it  was  there  held  that 
a  defence  of  this  kind  cannot  be  accepted  without  independent  proof 
of  insanity.^ 


1  Extract  from  a  paper  read  before 
the  Imperial  Academy  of  Medicine, 
Paris,  and  translated  for  Wiuslow's 
Journal  of  Psychological  Medicine. 

2  From  the  Philadelphia  Evening 
Telegraph  of  Dec.  31,  1881,  the  follow- 
ing is  extracted : — 

"  TJie  guests  in  the  Astor  House, 
New  York,  according  to  the  reports 
published  in  the  morning  papers,  yes- 
terday were  startled  to  see  what  was 
apparently  an  enormous  woman  walk- 
ing about  the  parlors  and  hallways. 
She  wore  a  handsome  black  silk  dress, 
cut  decolette,  and  terminating  in  a  long 
train.  Fine  lace  ruching  around  the 
throat  concealed  the  neck.  Around 
her  head  and  neck  in  graceful  folds 
was  wound  a  white  zephyr  '  cloud.' 
This  person  did  not  disdain  occasion- 
ally to  reveal  a  pair  of  shapely  feet  in- 
cased in  morocco  slippers  and  pink 
stockings.  There  was  only  one  thing 
aboi^t  her  which  savored  of  mystery. 
No  one  knew  where  she  came  from  nor 
when  she  arrived.  During  the  even- 
ing she  sailed  into  the  dining-room  and 
took  a  seat  at  one  of  the  tables.  De- 
tective Kerwin  of  the  Church  Street 
Station  happened  to  be  in  the  dining- 
room  at  the  time,  and  he  regarded  the 
individual  with  curiosity.  The  head- 
waiter,  James  T.  Smith,  told  the  de- 
tective that  she  was  an  object  of  mys- 
tery, and  he  kept  watch  on  the  person. 
About  11.30  o'clock  last  night,  the  sup- 
posed woman  accidentally  disarranged 
her    cloud,  disclosing  iron-gray  whis- 

610 


kers.  The  detective  then  arrested  the 
curiosity.  Giving  a  fair  imitation  of  a 
feminine  shriek,  the  masquerader  at- 
tempted to  run.  The  detective  quickly 
drew  away  the  zephyr  cloud,  and  the 
prisoner  subsided.  He  begged  to  be 
allowed  to  change  his  clothes  for  his 
own  apparel,  and  the  ofBcer  accompa- 
nied him  to  his  room.  Wliile  changing 
his  clothes  he  gave  his  reasons  for  wear- 
ing female  apparel.  He  said  that  he 
lately  lost  his  wife,  and  the  only  way 
he  covild  feel  that  she  was  near  him 
was  by  putting  on  his  wife's  clothing. 
He  arrived  at  the  Astor  House  yester- 
day moruing,  and  registered  as  A.  A., 
of  Philadelphia.  He  said  he  was  a 
merchant  in  this  city.  The  clerk  as- 
signed him  to  room  No.  135,  and  saw 
no  more  of  him.  He  is  five  feet  nine 
inches  in  height.  The  police  had  never 
seen  him  before." 

It  was  further  stated  that  "Mr.  A. 
left  Philadelphia  yesterday  morning  for 
the  purpose  of  visiting  his  sister-in-law 
who  resides  in  N.  C,  Conn.  Something 
over  a  year  ago  Mr.  A.  lost  his  wife, 
and  since  that  time  has  suffered  from 
melancholia,  although  never  to  such  a 
degree  as  to  incapacitate  him  from  busi- 
ness. This  morning  Mr.  S.,  his  partner, 
received  a  letter  from  him  concerning 
business  matters,  whicli  he  says  bore 
no  evidence  of  anything  being  wrong 
with  him.  The  announcement,  how- 
ever, in  the  morning  papers  sufficiently 
aroused  the  fears  of  Mr.  S.  to  induce 
him  to  telegrapli  to  New  York  for  more 


MANIA   TRANSITORIA.  [§  713. 

§  712.  Mania  transitoria  (^fitror  transitorius)  was  advanced  as 
a  defence  in  the  trial  of  Andrews,  before  the  supreme  Andrews' 
court  of  Massachusetts,  in  December,  1868.*  The  de-  ^'^^®- 
ceased,  Holmes,  was  found  dead  in  a  wood,  a  short  distance  from 
Andrews's  house,  and  from  a  street  in  the  village  of  Kingston ;  his 
head  mangled  and  his  skull  crushed.  A  considerable  sum  of  money 
was  found  in  his  pocket.  Suspicions  were  attracted  to  Andrews, 
Avho  had  been  an  intimate  friend  of  the  deceased,  and  who  had  in 
his  possession  a  will  of  the  deceased  leaving  him  a  considerable  sum 
of  money.  Andrews  denied  all  knowledge  of  the  homicide  ;  but, 
when  it  was  shown  that  he  had  previously  written  to  Holmes  invit- 
ing him  to  come  over  about  the  time  in  question,  that  he  was  the 
last  person  in  Holmes's  company,  that  his  accounts  of  his  conduct 
were  contradictory  and  prevaricating,  that  his  own  clothes,  worn  by 
him  at  the  time  of  the  homicide,  had  been  cast  by  him,  in  a  bloody 
state,  in  a  neighboring  well — then  he  confessed  his  guilt.  This 
confession,  in  the  shape  that  it  took  when  he  was  examined  on  his 
trial,  was,  that  Holmes  whom  he  had  met  at  the  wood  by  the  appoint- 
ment just  mentioned,  had  attempted  to  commit  on  him  an  unnatural 
crime,  and  that  he  had  killed  Holmes,  partly  in  self-defence,  and 
partly  in  an  ungovernable  transport  of  fury. 

§  713.  Dr.  Edward  Jarvis,  a  physician  of  Dorchester,  Massa- 
chusetts, called  for  the  defence,  opened  his  testimony  by  stating, 
that  "  it  is  thirty-three  years  since  I  commenced  attending  to 
mental  diseases  more  particularly  ;"  and  that  "  since  1835,  I  have 

specific  information  concerning  the  man  New    York,    received    this    afternoon, 

wlio  had  been  arrested.     It  is  conjee-  gives  the  conclusion  to  Mr.  E.'s  stranpe 

tured  that  Mr.  A.  may  have  taken  a  adventure  :     '  The  man  who  registered 

portion  of  the  former  wardrobe  belong-  at   the  Astor  House  as  A.  A.,  a  mer- 

to  his  deceased  wife  with  him  for  the  chant  of   Philadelphia,    and  who  was 

purpose  of  transferring  the  same  to  his  arrested  yesterday  for  acting  there  in  a 

sister-in-law  ;  that  he  was  led  to  look  disorderly   manner,    by  parading   the 

at  the  articles,  and  while  brooding  over  corridors    dressed   in    woman's    attire, 

his  loss,  received  a  sudden  and  uncon-  was  taken  to  the  Tombs  Police  Court 

troUable  impulse  to  act  as  he  did.    Mr.  to-day.'"     The  defence  of  insanity  was 

A.    is   a   gentleman    about  fifty  years  sustained  on  independent  proof  of  men- 

of  age,    and  enjoys   a  most   enviable  tal  disturbance. 

reputation  among  those  who  know  him  '  See  supra,  §  162,  and  also,  for  simi- 

best,  and  who  will  deplore  the  sad  mis-  lar  cases,  §  llHi,  and  Hoppin's  case,  34 

fortune  that  has  befallen  him.    The  fol-  Am.  Journ.  Ins.  462. 
lowing  Associated  Press  despatch  from 

611 


§  713.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

had  private  patients  under  my  charge,  but  am  now  mostly  employed 
as  consulting  physician."  He  strongly  maintained  the  existence 
oi furor  tra7isitorius,  or  sudden  mania,  as  an  independent  form  of 
insanity.  His  views,  as  subsequently  expanded  in  an  article  in 
the  Medical  Journal,^  as  given  in  Mr.  Davis's  report  of  the  trial, 
are  as  follows: — 

"  This  is  not  exclusively  a  new  or  an  old  doctrine,  but  it  has 
been  taught  in  France  and  Germany  for  many  years,  by  the  mana- 
gers of  the  insane,  and  by  writers  on  these  topics.  It  is  recognized 
by  psychological  authorities  in  Great  Britain.  It  is  admitted  and 
established  by  jurists  and  courts  in  Europe,  in  their  management  of 
persons  who  have  committed  acts  which  would  otherwise  have  been 
considered  as  crimes,  and  for  which  they  would  have  otherwise  been 
doomed  to  death  on  the  scaffold. 

"  The  case  of  Andrews,  who  was  tried  at  Plymouth  in  December 
last,  for  homicide,  has  brought  this  subject  prominently  before  the 
public  here.  As  there  is  a  difference  of  opinion  in  regard  to  this 
doctrine,  especially  in  its  application  to  the  case  of  Andrews,  it 
may  be  well  to  present  the  views  of  those  who  have  written  upon  it, 
in  connection  with  an  account  of  Andrews's  agency  in  the  homicide, 
and  of  his  trial. 

"  Dr.  Henry  Maudsley,  manager  of  a  lunatic  asylum  at  Han- 
well,  near  London,  and  one  of  the  editors  of  the  Journal  of  Men- 
tal Science,  says,  '  Cases  of  insanity  are  occasionally  observed  in 
which  an  attack  of  mania  suddenly  comes  on,  and  soon  passes  away, 
so  that  although  there  is  no  epileptic  fit,  one  can  scarce  avoid 
looking  upon  the  attack  as  a  sort  of  epilepsy.  Now  this  mania 
transitoria  may  take  on  the  homicidal  form.'^ 

"  1.  He  quotes  from  the  Journal  de  Med.  et  Chir.  Pratiq.,  1833, 
the  case  of  a  shoemaker,  who  was  of  industrious,  sober  habits.  He 
arose  early  one  morning  to  go  to  work.  In  a  short  time  his  wife 
was  struck  with  his  wild  look  and  incoherent  talk.  He  suddenly 
Qout  d  coup)  seized  a  knife  and  rushed  upon  his  wife  to  kill  her. 
She  had  hardly  time  to  escape  with  her  child.  Dr.  Lowenthal 
was  called.  He  bled  and  gave  other  remedies  to  the  maniac.  In 
the  afternoon  he  was  quiet.      In  the  evening  he  regained  the  use 

'  See  also  26  Am.  Journ.  Ins.  369.  ■  Journ.  Ment.  Science,  ix.  335.    See 

also  id.,  xviii.  122,  212. 

612 


MANIA   TRANSITORIA.  [§  713. 

of  his  faculties,  but  he  had  no  recollection  afterwards  of  the  events 
of  that  morning. 

"  Castelnau  calls  this  la  folic  ivistantanee,  temporaire,  jjassa- 
g^re,  '  mania  instantaneous,  transitory,  temporary,  fleeting,  a 
mental  disorder,  which  breaks  out  suddenly,  like  the  sudden  loss  of 
sense  in  some  physical  disease,  and  the  subject  is  urged  in  a  mo- 
ment to  automatic  acts,  which  could  not  have  been  foreseen.'^ 

"  '  The  first  act  of  the  mania  may  be  homicide,  and  the  disease 
may  pursue  its  course  under  the  continued  or  intermittent  form, 
but,  when  the  act  of  violence  or  homicide  is  the  only  maniacal 
manifestation,  it  is  instantaneous,  temporary,  fleeting,  transitory 
insanity,  according  to  Henke,  Marc,  Cazauvielh,  etc' 

"  2.  He  quotes  in  illustration  from  Hiem  of  Berlin  the  case  of 
a  counsellor  of  state  who  had  ever  enjoyed  good  health.  He 
suddenly  awoke  one  night,  breathing  stertorously.  His  wife 
endeavored  to  aid  him.  He  assailed  her  with  the  most  violent 
fury,  and  tried  to  throw  her  out  of  the  window.  After  a  struggle 
for  half  an  hour,  he  was  exhausted.  An  emetic  put  an  end  to  the 
paroxysm,  and  for  fourteen  years  he  had  had  no  other  attack. ^ 

"  3.  A  laboring  man  of  Garde,  returning  from  his  work,  met 
his  wife,  and  asked  her  if  supper  was  ready.  She  immediately 
seized  a  knife,  and  struck  him  a  fatal  blow.  She  had  not  been  in- 
sane, though  excitable,  and  belonged  to  an  insane  family  .^ 

"  Castelnau,  referring  to  this  form  of  mental  disorder,  says,  '  I 
could  show  by  facts,  already  so  numerous,  recorded  in  the  works 
of  physicians  devoted  to  the  study  of  insanity  and  the  observation 
of  the  insane,  the  existence  of  a  mental  malady  which  society  has 
the  greatest  interest  to  know,  in  order  to  prevent  consequences 
dangerous  to  the  community  and  to  the  person  aff"ected.'^ 

"Again  Castelnau  says,  '  We  could  cite  a  great  number  of  facts, 
but  these  are  sufficient  to  show  that  the  various  kinds  of  insanity, 
as  of  all  the  diseases  of  the  organism,  can  establish  themselves  in 
a  manner  either  progressive  or  sudden,  and  have  a  progress  slow  or 
rapid,  continued,  intermittent,  or  temporary.''' 

•  Dr.  Ph.  Boileau  de  Castelnau  in  3  Ibid.,  993. 
Annales  d' Hygiene  Publique  et  de  «  Ibid.,  216. 
Medecine  Legale,  xiv.  217.  6  Ibid.,  438. 

2  Castelnau,    Ann.    Hyg.    et    Med. 
Leg.,  xlv. 

613 


§  713.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

"  After  a  great  variety  of  facts  and  arguments,  Castelnau, 
at  the  end  of  his  essay,  says  in  conclusion :  '  There  exist  these  in- 
stantaneous changes  in  the  mental  faculties,  that  is,  instantaneous 
insanity. 

"  '  These  changes  have  their  first  and  only  manifestation  in  a 
single  act  of  qualified  crime. '^ 

"  Castlenau's  essay  was  published  in  1851  ;  seven  years  later, 
December  14,  1858,  M.  le  Dr.  A.  Devergie  read,  before  the  Im- 
perial Academy  of  France,  an  essay  on  the  questions,  '  Where  does 
reason  end  f  Where  does  insanity  begin  f  This  was  printed  in 
the  Annales  d'Hygi^ne  Publique  et  de  Mddecine  Legale,  in  1859, 
vol.  xi.,  second  series.  He  confirms  the  opinions  of  Castelnau,  in 
regard  to  instantaneous  and  transient  insanity,  except  that  he 
qualifies  them  with  the  certainty  or  probability  that  all  or  nearly 
all  these  cases  had  been  preceded  by  hereditary  taint  or  some  men- 
tal disease  or  irregularity  in  greater  or  less  degree. 

" '  Besides  those  cases  of  insanity  produced  under  all  these 
causes,  is  another  mode  of  alienation,  to  which  they  gave  the  name 
of  Transitory  Insanity  {folie  transitoire)^  that  is  to  say,  without 
preceding  apparent  symptoms,  without  cause,  near  or  remote,  appre- 
ciable to  the  world,  bursting  out  as  suddenly  (Irusquemenf)  as  a 
clap  of  thunder,  and  ceasing  completely  with  a  criminal  act.'^ 

" '  No  motive  for  the  act,  either  in  ungoverned  passions,  or  in 
acquired  ideas  ;  previous  character  and  manner  without  reproach  ; 
absence  of  hallucinations ;  the  explosion  of  the  mania  manifesting 
itself  in  one  act  of  violence  or  crime,  and  the  immediate  return  of 
reason  after  this  act  is  accomplished  ;  these,  in  my  opinion,  are  the 
characters  of  transitory  insanity .^^ 

""  Devergie  qualifies  this  description  as  above  indicated:  'Never- 
theless the  word  transitory,  perfectly  just  for  the  world,  in  the 
sense  that  the  mania  was  fleeting  (passay^re'),  although  the  act  was 
of  the  most  criminal  nature,  does  not  seem  sufficiently  exact  for  the 
physician.  The  persons  of  this  description  should  not  be  considered 
as  sound  in  mind  when  the  idea  of  crime  suddenly  rises  within  them, 
and  becomes  the  ruling  thought,  irresistible,  stronger  than  them- 

•  Ann.  Hyg.  et  Med.  Leg.  xi.  2d  ser.        3  Ibid.,  408. 
998. 

2  Ibid.,  407. 

614 


MANIA    TRANSITORIA.  [§  713. 

selves,  stronger  than  their  own  will.  The  antecedents  of  their 
families,  hereditary  taint,  divers  acts  of  social  life,  propensities  and 
tastes  perverted,  tendencies  to  silence  and  abstraction,  thoughts  of 
suicide,  for  years  existing  in  many,  have  been  the  forerunners  of 
the  sudden  outburst  of  irresistible  criminal  mania. '^ 

"  4.  Devergie  quotes  the  case  of  a  young  man  of  nineteen,  son 
of  a  merchant  of  Bordeaux.  He  had  been  most  regular  and  exem- 
plary in  all  his  previous  life,  an  affectionate  brother,  dutiful  son, 
faithful  to  his  employer,  a  banker,  and  the  heir  of  an  immense  for- 
tune, but  he  was  the  child  of  insane  parentage,  and  had  a  mother- 
in-law  for  whom  he  had  a  deep  aversion.  There  was  a  dinner  party 
at  his  father's  house,  which  passed  without  unusual  incident.  'At 
the  time  of  the  dessert,  Julius,  the  youth,  left  the  table,  and  went 
to  the  hall  to  warm  himself;  the  fire  was  not  burning;  he  then 
went  to  his  chamber,  took  his  gun  and  straw  hat  to  walk  in  the 
fields  as  he  was  accustomed  to  do.  Then  the  thought  of  suicide, 
which  had  troubled  him  for  a  month,  suddenly  presented  itself,  and 
as  suddenly  changed  to  the  thought  of  killing  his  mother-in-law. 
He  threw  down  the  gun,  went  to  his  brother's  chamber,  took  two 
pistols,  which  had  been  loaded  three  months,  leaving  his  own  pistols 
that  he  had  loaded  the  evening  before.  He  went  to  the  dining- 
room,  where  his  mother-in-law  was  sitting  at  the  table  Avith  his 
father,  and  discharged  one  of  the  pistols  into  her  temple.'^  He  was 
rational  immediately  afterward,  and,  so  far  as  is  known,  remained 
sane. 

"  Upon  this  case  Devergie  remarks  :  '  If  the  act  which  young 
Julius  committed  was  one  of  mania,  it  was  in  him  a  passage  sudden 
and  rapid  from  reason  to  insanity,  and  a  return  as  sudden  from  in- 
sanity to  reason.  This  then  is  a  very  exact  example  of  that  species 
of  mania  which  is  called  transitory.''  This  case  was  submitted  to 
MM.  Gintrac  and  Delafosse  of  Bordeaux,  Calmiel,  Tardieu,  and 
Devergie,  who  gave  their  opinion,  '  that  Julius,  at  the  moment  of 
this  action,  had  not  the  possession  of  his  freedom  of  will,'  and  the 
court  and  jury  acquitted  him  fully  of  the  charge  of  crime.-* 

"  These  doctrines  are  sustained  by  French  lawyers,  and  put  in 
practice  by  French  courts  and  juries,  in  the   trials  of  cases  of  this 

1  Ann.  Hyg.  et  Med.  Leg.  xi.  2d  ser.         «  Ibid.,  398. 
408.  »  Ibid.,  499. 

615 


§  713]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

nature.  '  Billard,  a  jurist  (jurisconsulte)  of  high  character,  whom 
no  one  suspects  of  being  indulgent,  recognizes  the  realitv  of  instan- 
taneous insanity.'  He  says :  '  There  are  some  madmen  whom 
nature  condemns  to  eternal  loss  of  reason,  and  others  who  only  lose 
it  for  a  moment  {instantanenient)  by  the  effect  of  some  great  grief, 
surprise,  or  other  cause  of  this  kind.  There  is  no  other  difference 
between  these  two  forms  of  mania  than  that  of  duration,  and  one 
whose  head  is  turned  for  some  hours  or  for  some  days  is  as  com- 
pletely insane,  during  this  ephemeral  action,  as  the  one  who  is  mad 
for  many  years.'     Les  alienes  devant  les  cours  cV Assizes.^ 

"  To  this  Devergie  adds  :  '  So  in  the  short  period  of  thirty  years 
or  more,  we  have  passed  from  incredulity,  I  may  say,  from  igno- 
rance the  most  profound  of  the  nice  distinctions  of  insanity,  with  such 
immense  advance,  that  now  our  judges  and  juries  accept  as  founded 
on  evidence  not  only  delusions  on  a  single  point,  monomania,  but 
even  those  transitory  aberrations  of  reason  which,  in  the  judgment 
of  the  world,  transform  a  man  of  previously  honorable  character 
into  a  criminal,  and  one  so  much  the  more  wicked  because  he  has 
covered  his  perversion  of  heart  so  completely  as  to  conceal,  through 
a  long  period  of  years,  the  baseness  of  his  act  under  the  garb  of 
the  most  irreproachable  life.'^ 

"  Esquirol  says  :  '  These  deplorable  homicidal  impulses  are  spon- 
taneous and  fleeting,  and  without  habitual  delusion.'^  Referring 
to  murder  by  one  in  this  condition,  he  says :  '  This  presupposes 
the  suppression  of  all  intelligence,  all  sensibility,  and  all  volition. 
The  following  fact  will  best  explain  my  meaning. 

"  5.  'A  man  thirty-two  years  old,  tall,  thin  in  flesh,  of  a  nervous 
temperament,  amiable  disposition,  was  educated  with  great  care, 
and  accomplished  in  the  fine  arts.  He  had  had  a  cerebral  affec- 
tion from  which  he  had  recovered  many  months  previous  to  his 
arrival  in  Paris,  two  months  ago.  There  he  conducted  himself  with 
great  propriety,  until  one  day,  when  he  entered  the  palace  of  justice, 
and  there  threw  himself  upon  a  lawyer  and  seized  him  by  the  throat. 
He  was  arrested  and  taken  to  prison,  and  put  under  my  care  on  the 

'  Castelnau  in  Ann.  Hvg.  et  Med.  ^  Malad.  Mentales,  sous  les  Rapports 
L6g.  xlv.  217.  Medico-Legal,  ii.  104, 

'  Ann.  Hyg.  et  Med.  Leg.  xi.  2d  ser. 
402. 

616 


MANIA    TRANSITORIA.  [§  714. 

same  day.  At  my  first  visit,  on  the  next  day,  he  was  calm,  with- 
out anger  or  resentment,  and  had  slept  all  night,  and  had  sketched 
a  landscape.  He  spoke  of  his  going  to  the  court-room  the  evening 
previous,  coolly,  but  had  no  recollection  of  his  conduct  there  or 
of  his  motives.  Nor  did  he  manifest  any  regret.  He  answered  my 
questions  courteously,  and  with  an  air  of  sincerity.  "  I  went  to 
the  palace  of  justice,  as  I  would  to  any  other  place  without  any 
special  purpose,  merely  as  a  sight-seer.  I  not  only  had  no  ill  will 
against  the  advocate,  but  did  not  even  know  him.  I  cannot  under- 
stand  how  I  could  have  committed  such  an  outrage."  When  I  said, 
that  it  could  be  explained  only  by  the  sudden  attack  of  some  dis- 
ease, he  said,  "  You  may  explain  it  as  you  please  ;  I  am  not  con- 
scious of  having  been  ill,  and  I  cannot  tell  how  this  could  have 
happened."  During  the  three  months  that  he  remained  under  my 
observation,  he  manifested  not  for  an  instant  any  disorder  of  the 
mind.'^ 

"  Castelnau  says :  '  there  is  no  want  of  authorities  to  establish 
the  doctrine  of  instantaneous  insanity.'  The  observations  made  by 
writers  on  medical  jurisprudence  (rnedicins  legists)  of  the  present 
day  leave  no  doubt  of  the  existence  of  this  mania  of  a  few  instants, 
during  which  men  who  have  never  manifested  insanity  all  at  once 
(tout  ci  coup)  a,re  completely  deprived  of  their  reason  and  give 
themselves  up  to  the  most  deplorable  excesses.  The  learned  chief 
editor  of  the  Journal  du  Medecine  et  de  Chirurgie  Pratique  offers 
five  examples  of  this  kind  of  mania.  In  four  of  these,  accidental 
circumstances  only  prevented  persons,  whose  previous  life  had  been 
irreproachable,  from  committing  crimes.  The  fifth  case  was  that 
of  a  woman  who  killed  her  mother  and  three  others,  and  wounded 
a  fourth  person. "^ 

§  714.  With  this  may  be  classed  the  argument  of  Dr.  Hammond, 
in  his  review  of  McFarland's  case  : — ^ 

"  I  have  stated  incidentally,  that  there  is  a  form  of  insanity 
which,  in  its  culminating  act,  is  extremely  temporary  in  its  char- 
acter, and  which,  in  all  its  manifestations,  from  beginning  to  end, 
is  of  short  duration  :  1st.  This  species  of  mental  aberration  is  well 
known  to  all  physicians  and  medical  jurists  who  have  studied  the 

•  Malad.  Mentales  sous  les  Rapports        2  Ann.  Hyg.  et  Med.  Leg.  xlv.  221. 
Medical  et  Medico  Legal,  ii.  102.  '  Journ.  Psy.  Med.  459. 

617 


§  715.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

subject  of  insanity,  {a)  By  authors  it  has  been  variously  desig- 
nated as  transitory  mania,  ephemeral  mania,  temporary  insanity, 
and  morbid  impulse,  (h)  It  may  be  exhibited  in  the  perceptional, 
intellectual,  emotional,  or  volitional  form,  or  as  general  mania. 

"  2d.  The  exciting  causes  of  temporary  insanity  are  numerous, 
(a)  It  may  be  induced  by  bad  hygienic  influences,  such  as  impro- 
per food,  exposure  to  intense  heat,  cold,  or  dampness,  or  to  a  noxious 
atmosphere  ;  by  excessive  physical  exercise,  by  disease  of  the  heart, 
by  blows  upon  the  head  or  other  parts  of  the  body,  by  certain 
general  and  local  diseases,  by  the  abuse  of  alcoholic  liquors,  by  the 
ingestion  of  certain  drugs,  such  as  opium,  belladonna,  and  hashish, 
by  excessive  intellectual  occupation,  by  loss  of  sleep,  and,  above 
all,  by  great  emotional  disturbances.  (5)  Among  these  latter  are 
religious  excitement,  grief,  disappointed  aifection,  and  especially 
anxiety,  by  which  the  mind  is  kept  continually  on  the  stretch,  tor- 
tured by  apprehensions,  doubts,  and  uncertainties,  and  by  which  it 
is  worn  away  more  surely  than  by  the  most  terrible  realities. 

"  3d.  The  predisposing  causes  are  to  be  found  in  the  individual, 
as  an  inherent  part  of  his  organization,  (a)  They  consist  in  an 
hereditary  tendency  to  insanity,  or  to  some  other  profound  affec- 
tion of  the  nervous  system ;  (5)  or  the  possession  of  an  excitable, 
nervous  temperament,  which  is  incapable  of  resisting  those  morbid 
influences  which  persons  of  phlegmatic  disposition  would  easily 
withstand,  (c)  Thus,  all  men  are  not  afiected  alike  by  disturbing 
causes,  because  all  men  are  not  cast  in  the  same  physical  or  mental 
mould  ;  a  circumstance  which  will  produce  insanity  in  one  person 
will  scarcely  ruflfle  the  equanimity  of  another. 

"  4th.  The  immediate  cause  of  temporary  insanity  is  the  disease 
itself,  of  which  the  mental  aberration  is  simply  the  manifestation. 
It  may  consist  of — (a)  A  condition  of  cerebral  exhaustion  in  which, 
owing  to  excessive  wear  and  tear  of  the  brain,  new  substance  is  not 
formed  with  sufficient  rapidity  to  take  the  place  of  that  used ;  (5) 
The  circulation  through  the  brain  of  blood  which  is  not  normal  in 
quality  ;  (c)  Cerebral  congestion." 

§  715.  A  qualified  assent  to  the  same  hypothesis  may  be  found 
in  a  late  (1871)  publication  of  Dr.  Kraff't-Ebing.  {Die  LeJire  von 
der  mania  transitoria.)  This  experienced  and  acute  observer  re- 
cords 18  cases  which  he  declares  exhibit  the  symptoms  of  this  dis- 
ease. Of  these,  15  were  men  and  3  women.  The  attack  in  14 
618 


MANIA   TRANSITORIA.  [§  716. 

out  of  18  of  these  cases  was  sudden,  without  the  premonitory  signs 
of  ordinary  mania.  In  most  of  the  reported  cases,  terror  was 
strongly  marked.  The  patient  suddenly  was  overcome  with  anguish; 
with  fear  of  approaching  death ;  with  belief  that  he  was  assailed 
by  a  vindictive  and  desperate  enemy.  In  some  instances  the 
"  mania"  took  the  form  of  violent  rage.  But  it  is  an  essential 
requisite  of  mania  transitoria,  according  to  Dr.  Krafft-Ebing,  that 
the  patient's  power  of  memory  should  be  lost  during  the  preva- 
lency  of  the  attack.  He  is  unconscious  afterwards  of  anything 
that  he  did  while  the  attack  continued.  This,  it  is  maintained,  is 
an  infallible  test,  and  one  which  is  readily  applied.  Dr.  Krafft- 
Ebing  on  this  point,  however,  advances  positions  which  open  his 
whole  exposition  to  unfavorable  criticism.  He  declares  that  a 
simulant,  who  feigns  this  disease,  will  not  know  where  his  oblivion 
is  to  commence,  and  where  it  is  to  end.  But  a  simulant  who  is 
intelligent  enough  to  select  this  peculiar  type  of  disease  as  that 
which  he  is  to  feign  would  be  intelligent  enough  to  follow  Dr. 
Krafft-Ebing's  prescription  how  to  do  so  successfully.  And  the 
prescription  is  simple  enough :  "  Forget  everything  that  you  did 
when  you  lapsed  into  this  transitory  rage — remember  everything 
else."  Dr.  Krafft-Ebing  declares  that  the  simulant  would  betray 
himself  by  his  consciousness.  But  an  intelligent  simulant  would 
do  no  such  thing ;  whereas,  an  innocent  person,  hurried  uncon- 
sciously into  crime  by  such  a  mania,  would,  on  being  subsequently 
informed  of  it,  be  overcome,  when  the  subject  was  afterwards  re- 
ferred to,  with  emotions  which  it  would  be  difficult  to  distinguish 
from  remorse.^ 

§  716.  On  the  other  hand,  Dr.  Choate,  superintendent  of  the 
Taunton  Lunatic  Asylum,  who  has  held  that  "  position  for  the  last 
fifteen  years,"  and  has  had  "  about  three  thousand  six  hundred 
patients"  under  his  charge,  in  addition  to  extensive  collateral  ob- 
servation, testified  in  Andrews's  case  that  "  there  are  no  cases  of 
instantaneous  insanity,  instantaneously  maniacal,"  declared  that  he 
had  never  known  such  a  case,  and  testified  that  "  the  fact  that  a 
man  was  under  constant  observation  and  appeared  sane  down  to  an 
hour  at  least  before  the  homicide,  and  then  half  an  hour  afterwards, 

'  Observations  somewhat  similar  to    in  the  Edinburgh  Journal  for  Novem- 
those  of  Dr.  Krafft-Ebing  are  recorded     ber,  1865. 

619 


§  719.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

is  to  mj  mind  conclusive  that  the  homicidal  act  was  not  in  con- 
sequence of  disease,  and  did  not  spring  from  insanity."  To 
the  same  effect  is  the  testimony  of  Dr.  Bell,  on  the  trial  of 
Rogers,^  who  stated  that  he  had  had  a  thousand  patients  under 
his  care. 

§  717.  With  regard  to  the  argument  of  Dr.  Jarvis,  which  has 
been  given  above,  the  following  observations  are  to  be  made : — 

§  718.  First.  However  it  may  have  been  at  the  time  Dr. 
^  Jarvis   wrote,   it   cannot   now  be    affirmed   that    furor 

Dangers  ,        ,  ,  ,        ,  .     .'       . 

attending  tvansitorius,  or  mania  transitoria,  as  a  distinctive 
of'tiir  ^°^  disease,  is  recognized  generally  by  the  German  and 
mania.  French  writers  on  psychological  medicine.     Friedreich^ 

and  Schiirmayer,  as  will  presently  be  seen,^  positively  decline  to 
award  it  such  a  status.  Dr.  Li  man,  who  may  be  regarded  of  high 
authority,  not  merely  as  the  editor  of  Casper,  but  as  a  high  govern- 
ment officer  charged  with  the  judicial  examination  of  questions  of 
insanity,  says,  with  much  emphasis,  that  there  may  undoubtedly  be 
transient  attacks  of  insanity,  but  "  there  is  no  distinctive  species  of 
mania  of  this  class,  no  so-called  7nania  transitoria^  "  This  un- 
scientific and  perilous  designation,"  he  continues,  "  cannot  be 
applied  to  practice  ;  and  is  entirely  superfluous  in  the  elucidation 
of  each  individual  case  by  the  general  diagnostic  tests."  And  Dr. 
Bucknill*  says  that  "  the  existence  of  this  class  admits  of  grave 
doubt,"  and  adds,  very  justly,  that  "  it  is  probable  that  the  cases 
of  insanity  which  have  been  placed  under  this  head  were  less  recent 
and  sudden  than  they  were  supposed  to  be.  The  earlier  stage  of 
diseased  feeling  had  been  unobserved  by  others,  and  unacknowl- 
edged by  the  patient y 

§  719.  Secondly.  The  alleged  cases  are  either  imperfectly  re- 
ported, or  exhibit  proofs  of  permanent  mental  lesion.  Of  imperfect 
reporting  may  be  mentioned  No.  1  in  Dr.  Jarvis's  statement  as 
given  above.  To  prove  a  negative  we  must  set  out  by  showing 
that  there  has  been  a  due  application  of  the  requisite  tests.  But 
as  to  the  history  of  the  patient  whose  case  is  here  noticed,  we  have 
no  information,  and  no  evidence  given  that  any  attempt  was  made 
to  search  for  it.     Whether  he  had  had  prior  attacks — whether  there 

»  Pamp.  p.  149.  3  Infra,  §  722. 

2  Handbuch,  etc.,  p.  591  *  Essay  on  Criminal  Lunacy,  p.  38. 

620 


MANIA    TRANSITORIA.  [§  719. 

was  insanity  in  his  family — whether  he  was  epileptic — we  are  not 
informed. 

Case  No.  2,  that  of  Stadsrath  Lemke,  was  reported  as  far  back 
as  1817,  and  has  since  been  repeatedly  canvassed.  It  was  clearly 
a  case  of  sleep-drunkenness,^  to  which  it  appeared  that  Lemke  was 
subject,  and  during  which,  at  a  prior  period,  he  had  made  a  homi- 
cidal attack  on  his  secretary.  In  the  case  cited  above,  it  appears 
he  had  been  previously  on  a  hunting  party,  and  his  sleep  was  prob- 
ably deepened  by  his  exposure,  if  not  by  conviviality.  No  doubt 
he  was  startled  by  some  noise,  and  thereupon  attacked  his  wife  in 
words  that  showed  that  he  thought  her  a  thief.  It  was  under  a 
similar  delusion,  when  suddenly  startled  in  his  sleep,  that  he  had 
previously  attacked  his  secretary.  The  case  was  not  mania  transi- 
toria.  It  was  simply  the  momentary  terror  and  violence  of  sleep- 
drunkenness  ;  a  state  capable  of  easy  ascertainment,  and  of  positive 
judicial  recognition. 

Case  No.  3  is  that  of  a  person  who  is  spoken  of  as  "  excitable," 
and  as  belonging  "  to  an  insane  family."  Nothing  is  said  which 
excludes  the  supposition  of  subsequent  insanity,  of  which  the  out- 
burst referred  to  was  the  first  open  sign ;  and  there  is  no  statement 
as  to  the  symptoms  of  "  excitability"  which  in  this  woman  of  in- 
sane family  preceded  this  outburst.  But,  unless  these  symptoms 
indicated  insanity,  and  unless  subsequent  insanity  occurred,  it  is 
hard  to  make  out  of  the  facts  above  stated  a  case  on  which  a  court 
of  law  could  rest  a  verdict  of  irresponsibility.  The  "excitable" 
wife  of  a  laboring  man,  when  he  asks  her,  it  may  be  in  some  way  to 
irritate  her,  if  supper  is  ready,  strikes  at  him  with  a  knife,  and  the 
blow  proves  fatal.  Such  cases  are  frequent  in  criminal  courts  ;  but 
in  no  case  would  an  acquittal  on  ground  of  insanity  ensue,  unless 
insanity  was  proved  aliunde.  If  mania  transitoria  is  supposed  to 
be  sufficiently  shown  by  such  a  violent  act,  taken  by  itself,  then 
there  is  no  violence  yielded  to  sudden  rage  that  is  not  mania  transi- 
toria. The  case,  therefore,  rests  as  follows :  If  there  was  no 
proof  of  insanity  aliunde,  then  there  was  no  mania — nothing  but  a 
burst  of  ill-temper  and  irritation,  common  to  all  acts  of  sudden  vio- 
lence. If  there  was  proof  of  insanity  aliunde,  then  the  case  was 
not   mania  transitoria,  for  the  very  idea  of    the  transitory   and 

'  See  supra,  §  484. 

621 


§  722.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

parenthetical  character  of  this  mania  excludes  the  idea  of  its  being 
the  manifestation  of  a  continuous  state. 

The  same  observation  applies  to  No.  4,  though  in  this  case  the 
question  is  embarrassed  b j  the  fact  that  the  defendant  is  admitted 
to  have  had  a  "  deep  aversion"  to  the  mother-in-law  whom  he 
killed. 

No.  5  would  exhibit  the  same  features  as  "  homicide  from  gene- 
ral malice,"  well  known  in  the  law  books,  were  it  not  that  the 
defendant  is  stated  to  have  had  a  prior  "  cerebral  affection,"  and 
subsequent  to  the  deed  to  have  lost  all  recollection  of  the  event. 
Here  then,  again,  mania  transitoria  can  only  be  sustained  by  evi- 
dence of  cerebral  disease  before  and  after  the  act.  If,  however, 
there  be  such  prior  and  subsequent  cerebral  disease,  the  case  is  not 
mania  transitoria. 

§  720.  TJiirdly.  To  admit  that  such  an  hypothesis  of  irresponsi- 
bility is  applicable  to  acts  of  sudden  abnormal  violence,  without 
proof  of  insanity  before  or  after  the  act,  is  to  emancipate  violence 
and  barbarism  from  penal  restraint.  The  more  atrocious  the  act — 
the  more  complete  the  proof  of  the  defendant's  prior  and  subsequent 
sanity — the  more  distinctively  is  the  defence  of  mania  transitoria 
made  out. 

§  721.  Fourtlily.  The  principle  of  the  law,  that  a  person  sane 
before  and  after  a  particular  act,  is  to  be  presumed  to  be  sane 
during  such  act,  is  a  principle  of  common  sense. ^  Without  it,  none 
of  the  business  and  social  intercourse  of  life  could  be  sustained. 

§  722.  Not  differing  widely  from  these  results  are  the  views  of 
Friedreich^  and  Schiirmayer.^  The  latter  defines  this  phase  of 
mania  to  involve  an  attack  of  frenzy,  fury,  and  raving  madness, 
accompanied  with  more  or  less  confusion  of  the  senses,  and  of  the 
thinking  faculties,  and  peripheric  consciousness  which  arises  without 
any  perceptible  or  from  a  very  slight  external  provocation,  generally 
lasts  but  a  short  time,  hardly  a  few  hours,  and,  after  sometimes 
leading  to  the  most  serious  consequences,  leaves  but  an  indistinct 
trace  in  the  memory.  It  is  either  the  opening  symptom  of  a  dis- 
turbance of  the  super- physical  faculties  which  has  hitherto  remained 

>  See  supra,  §  246.  3  Gericlit.  Med.  §  522. 

2  Friedreich,  Haudbuch  der  gericht- 
lichen  Psychologie,  p.  591. 

622 


MANIA    TRANSITORIA.  [§  722. 

occult,  and  now  first  manifests  itself,  or  it  appears  in  persons  hith- 
erto entirely  sane,  or  in  individuals  who  have  already  suffered  from 
pronounced  insanity,  particularly  from  melancholy,  depressed  de- 
lirium, lunacy,  and  imbecility.  In  the  latter  class  of  cases,  the 
question  of  responsibility  presents  no  difl&culties  ;  far  more  in  the 
former,  in  view  of  the  possibility  that  the  guilty  act  may  have  been 
the  result  of  the  outbreak  of  violent  passion.  It  will  then  be  often 
impossible  to  do  more  than  to  set  forth  the  possibility  or  probability 
of  a  furor  transitorius,  which  is  effected  by  establishing  the  ex- 
istence of  facts  which  may  have  caused  it.  Such  are  epilepsy, 
irregular  development,  gastric  irritations,  disturbances  of  the  men- 
strual or  hsemorrhoidal  courses,  or  the  secretion  of  milk,  the  sudden 
dispersion  of  eruptions  of  the  skin,  sunstroke,  drunkenness,  poison, 
violent  agitation,  anger,  dread,  fright,  deep  shame,  over-exertion  of 
the  mind.  But  where  no  such  probable  causes  are  to  be  discovered, 
the  examination  is  necessarily  confined  to  the  statements  of  the 
party,  and  the  immediate  investigation  of  his  intellectual  and  moral 
condition,  the  principal  point  of  attention  being  the  search  and 
scrutiny  of  the  motives  of  the  acts,  and  the  inquiry  whether  or  not 
they  were  mingled  with  hallucinations  or  illusions,  and  whether  the 
act  was  not  preceded  immediately,  or  for  some  length  of  time,  by 
bodily  disturbances,  sleeplessness,  restlessness,  moodiness,  etc. 
Very  great  difficulties  are  involved  in  those  cases  in  which  an  ad- 
ditional doubt  arises  whether  the  ravings  were  not  occasioned  by  the 
criminal  act  itself,  the  probability  of  which,  with  a  certain  class  of 
temperaments,  has  been  already  noticed. 

The  non-recognition  by  the  courts  of  this  form  of  defence  has 
been  already  stated.^ 

1  Siipra,  §§  162,  166. 

623 


§  723.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 


CHAPTEII  VIII. 


DELUSIONS  AND  HALLUCINATIONS. 


Marked  by  general  derangement  of  tlie 
perceptive  faculties,  §  723. 

Various  pliases  of  delusions,  §  724. 

Tests  of  EUinger,  §  726. 

Errors  of  insanity  distinguishable  from 
those  of  sanity,  §  727. 

Distinction  between  illusions  and  hal- 
lucinations, §  728. 

Hammond's  test  of  the  distinction,  § 
730. 

Delusions  no  defence  in  matters  not 
their  product,  §  731. 

Question  determined  on  circumstances 
of  each  case,  §  735. 


Observations  of  Griesinger  on  distinc- 
tion between  illusions  and  hallucina- 
tions, §  736. 

Example  of  general  insanity  produced 
by  delusion,  §  738. 

Ei^idemic  character  of  hallucination  as 
to  loss  of  identity,  §  739. 

Observations  of  Griesinger  on  this 
topic,  §  740. 

Hagen's  theory  of  cause  of  delusions, 
§  741. 

Illustration  of  partial  delirium  by  Mayo, 
§742. 

Classification  of  partial  hallucinations 
by  Abercrombie,  §  743. 


Marked  by 
general  de- 
rangement 
of  the  per- 
ceptive 
faculties. 


§  723.  Under  this  head  will  be  treated  that  species  of  mental 
unsoundness  which  is  marked  by  the  continued  and  con- 
trolling existence  of  insane  ideas,  without  being  either 
accompanied  with  delirium  or  with  moral  maniacal  pro- 
pensities to  specific  crimes.  It  may  be  considered  as 
covering  the  same  phase  as  the  partial  lunacy  (partielle 
Verriicktheit)  of  Schiirmayer,  who  declares  it  to  consist  in  crazy 
notions,  with  only  a  secondary  participation  of  the  aifective  facul- 
ties, without  damage  to  the  peripheric  consciousness,  and  without  a 
decided  weakness  of  the  intellectual  powers.  The  subjects  of  it 
have  resolved  their  individuality  into  their  delusion,  it  is  in  their 
eyes  an  absolute  truth,  and  all  demonstration  and  argument  in 
opposition  to  it  are  idle.  Persons  of  this  kind  often  suifer  no  ex- 
ternal mark  to  betray  their  inward  disorder,  frequently  speak  and 
act  quite  rationally  about  and  in  matters  outside  of  the  circle  of 
their  hallucinations,  and  only  suffer  the  point  of  derangement  to 
transpire  when  it  is  adverted  to  in  conversation  or  when  they  have 
624 


DELUSIONS    AND    HALLUCINATIONS.  [§  724. 

occasion  to  write.  The  malady  may  easily  lead  to  the  gravest  vio- 
lations of  law,  for  which  reason  it  is  of  the  greatest  judicial  interest. 
Where  the  act  is  clearly  the  result  of  this  morbid  condition  of  the 
mind,  no  legal  responsibility  can  attach  to  it.' 

This  species  of  mental  unsoundness  appears  less  frequently  as  a 
primary  disease,  than  as  a  secondary  result,  developed  out  of  prior 
disease,  in  the  form  of  melancholy  or  otherwise.  When  the  general 
expansive  and  depressive  aflfection  of  the  sentiments  recedes,  the 
confusion  of  the  peripheric  consciousness  is  dispelled,  the  bodily 
health  regains  its  equilibrium,  the  patient  finds  himself  endowed 
with  a  system  of  affections  and  perceptions  to  which  he  was  before 
a  stranger,  but  which  revolve  round  one  or  more  manifestly  insane 
stand-points. 

§  724.  These  various  fancies   are  reducible  to  certain  groups, 
which  take  their  point  of  departure  (1)  in  the  relations 
of  the   individual  to  the  external  world,  to   the  super-    phases  of 
natural,  and  to  his  own  personality,  or  (2)  in  perceptive    ^'^^^^^^o"^- 
anomalies  of  depression  and  mania. 

The  former  view  admits  the  following  classification  :  crackhrain- 
edness,^  where  the  erroneous  notions  relate  to  the  objects  and  rela- 
tions of  the  external  world,  and  of  the  body  of  the  individual  ; 
frenzy,  where  they  concern  things  beyond  the  reach  of  tlie  senses, 
religious  mysteries  and  divine  inspirations  ;/o//3/  [Harrheit),  where 
the  identity  of  the  person  has  undergone  a  change.  In  the  latter 
view,  the  subject-matter  of  the  delusion  generally  depends  upon  the 
kind  of  erroneous  notion  which  accompanied  the  preceding  stages 
of  depression  and  mania.  The  delusion  itself  is  of  a  depressing  or 
elevating  description.    The  depressive  form  subdivides  as  follows: — 

a.  Hypoehrondriacal  delusions,  where  anomalous  bodily  sensa- 
tions— delusions  of  the  sense  of  touch — suggest  the  idea,  that  par- 
ticular parts  of  the  body  have  been  transformed,  that  there  are 
parasitic  animals  in  them,  or  injurious  substances,  which  must  be 
removed,  etc. 

h.  Demoniacal  delusions.  The  patients  declare  and  maintain, 
with   perfect   self-possession  and  entire   calmness,  that   demoniac 

'  Schlirmayer,  Gericht.  Med.  §  556 ;  at  the  same  time  tells  us  is  expressed 

supra,  §§  125-145.  bj  the  Scotch  by  the  phrase  "  having 

2  "A    little   cracked,"    to    use    Dr.  a  bee  in  his  bonnet." 
Rush's  popular  synonyme,  for  what  he 

VOL.  I. — 40  625 


§  725.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

beings  or  other  persons,  living  or  dead,  have  their  seat  in  their 
bodies.' 

c.  Such  delusions,^  called  by  Ellinger  "  concentric,"  as  consist 
in  the  delusion  that  the  personal  reputation  of  the  suiferer  has  been 
injured  by  a  real  or  imaginary  misfortune,  that  the  infamy  incurred 
has  reached  the  ears  of  the  highest  circles — impressions  still  further 
confirmed  by  delusions  of  the  sense  of  hearing — and  that  no  re- 
source is  left  but  either  seclusion  from  all  intercourse  with  mankind, 
or  restitution  of  good  fame  by  some  bold  exploit. 

d.  Perijyheric  delusions,  in  which  the  patients  regard  themselves 
as  the  objects  of  a  plot  on  the  part  of  the  authorities  or  of  their 
relatives,  or  of  some  secret  society,  surrounded  by  spies  and  func- 
tionaries of  the  secret  police,  watched  and  dogged  at  every  step, 
injured  bodily  and  mentally  in  action  and  repose ;  persecuted  and 
endangered  in  life  and  property,  or  that  they  are  beleaguered  by 
thieves,  robbers,  and  murderers,  or  that  spirits  hover  in  the  air  to 
torment  and  disquiet  them,  etc. 

§  725.  The  elevating  or  ecstatic  phase  of  this  species  of  mental 
unsoundness  subdivides  itself,  according  to  Schlirmayer  :^ — 

a.  Religious  delusions,  which  may  be  considered  in  connection 
with  dsemonio-mania,  already  noticed,*  in  which  the  patient  pretends 
to  stand  in  a  particular  position,  as  regards  degree  and  distinction, 
in  the  eye  of  God,  to  have  been  appointed  censor,  prophet,  re- 
former, and  Messiah,  etc.  ;  these  are  generally  accompanied  with 
hallucinations  of  sight  and  sound,  and  often  lead  to  the  most  dread- 
ful crimes. 

h.  Delusions  of  pride.  The  patients  suppose  themselves  called, 
by  their  qualifications  of  person  and  mind,  to  the  most  important 
missions. 

c.  Delusions  of  vanity.  The  delusion  here  is  a  supposed  descent 
from  a  princely  lineage,  elevation  to  a  higher  social  position,  etc., 
the  enjoyment  of  which,  however,  is  destroyed  by  the  machinations 
of  the  envious  and  malevolent. 

d.  Sexual  delusion,  which  is  sometimes  of  a  more  intellectual, 
sometimes  of  a  more  carnal  nature,  is  a  state  of  mind  in  which  the 
patients  suppose  that,  in  consequence  of  their  personal  charms  or 

>  See  ante,  §§  644-650.  »  Med.  Journ.  §  556. 

2  Ellinger,  p.  132.  *  Supra,  §§  644-677. 

626 


DELUSIONS    AND   HALLUCINATIONS.  [§  726. 

other  advantages,  either  all  people  of  the  opposite  sex,  or  even 
persons  occupying  a  higher  rank,  such  as  princes,  are  in  love  with 
or  betrothed  to  them  in  spirit.  This  is  attended  Avith  many  hallu- 
cinations, particularly  of  the  sexual  kind.^ 

§  726.  It  is  not  to  be  denied  that  the  proper  consideration  of 
this  species  of  mental  unsoundness  presents  great  diffi-   Tests  of 
culties,  and  the  practical   suggestions  of  Ellinger^  are    Eiimger. 
indeed  worthy  of  peculiar   attention.     He  notices  the  following 
phases : — 

"  1.  An  impression  of  having  sustained  wrongs  at  the  hands  of 
certain  persons,  against  whom  revenge  is  meditated  and  executed. 
Here  the  diseased  individual  often  acts  on  mature  reflection,  and  in 
the  full  knowledge  that  he  has  no  right  to  take  revenge,  and  of  the 
consequences  which  ordinarily  ensue  ;  and  then  it  may  occur  either 
that  he  prefers  undergoing  the  extremity  of  the  law,  and  perishing 
together  with  the  supposed  wrongdoer,  to  remaining  longer  exposed 
to  his  assaults,  or  that  he  proceeds  on  the  ground  of  his  known  and 
established  insanity,  calculating  to  escape  responsibility  and  punish- 
ment on  the  strength  of  the  indulgence  accorded  to  his  case.  Here 
there  appears  in  general  ground  to  assume  a  moral  responsibility  .^ 

"  2.  An  impression  that  the  patient  is  acting  at  the  instigation 
or  under  the  constraint  of  demons.  In  this  case  it  might  become 
necessary  to  inquire  whether,  and  in  how  far,  the  patient  under- 
stood that  the  demands  of  the  demons  were  wrongful,  and  that  he 
was  at  liberty  to  withstand  them,  and  whether,  and  in  how  far,  it 
was  actually  in  his  power  to  withstand  them. 

"  3.  The  patient  imagines  himself  beset  by  thieves,  etc.,  and 
neither  sure  of  his  property  nor  of  his  life.  This  may  perhaps  be 
treated  as  a  case  of  self-defence,  and  all  responsibility  excluded.* 

"  4.  The  self-consciousness  of  the  patient  is  perverted,  and  he 
acts  with  that  plenitude  of  power  with  which  he  is  invested  in  view 
of  his  position  and  his  destiny,  in  religion,  politics,  etc.  In  this 
case,  as  under  the  third  position,  responsibility  is  out  of  the  ques- 
tion. 

"  But  as  a  fixed  idea  never  occurs  in  such  isolation  as  is  erro- 

>  Supra,  §  617.  3  See  supra,  §§  12.'i-145. 

2  P.  137.  «  Supra,  §§  125-145,  442. 

627 


§  727.]      MENTAL   UNSOUNDjSTESS   CONSIDERED   PSYCHOLOGICALLY. 

neously  supposed,  there  being  always  a  series  of  phantoms  con- 
nected in  a  system,  the  outlines  of  which  it  may  be  periiaps 
impossible  to  define  with  accuracy ;  and  as  the  entire  affective 
life  has  become  altered  and  irregular,  the  general  views  of  men  and 
things  have  become  distorted,  and  illusions  of  the  senses  often 
brought  to  light  by  a  rigid  scrutiny,  which  entirely  escaped  the 
eye  of  the  superficial  observer — as  the  action,  reaction,  and  intro- 
action  of  the  psychical  faculties  is  no  longer  measurable  by  the 
ordinary  standard — ojnnions  must  be  given  with  the  greatest  cir- 
cu7nspection,  and  every  j^ossihle  reservation^  whenever  the  connec- 
tion or  want  of  connection  between  the  illusion  and  the  deed  is  not 
jyerfectly  evident.'^ 

§  727.    It  is  not  easy  to  mistake  the  error  of  a  lunatic  for  the 
error  of  a  sane  man.     The  decisive  point  of  difference 

Errors  of 

insanity        between  them  is,  that  in  the  latter  case  the  action  of  the 

abie^rom^'   thinking  faculties,  from  whatever   cause    this  be,   ter- 

those  of  minates  too  soon,  and  before  the  entire  subject  has  been 
sanity.  . 

thoroughly  sifted,  and  that  such  an  eri'or,  after  having 

been  properly  refuted,  can  only  be  maintained  by  dint  of  obstinacy 
or  indolence.  In  insanity,  on  the  contrary,  the  error  of  the  under- 
standing is  occasioned  by  the  abnormal  function  of  the  perceptive 
faculty.  One  or  two  prevailing  schemes  of  perception'  are  applied 
to  almost  all  other  perceptions  to  which  they  can  be  adjusted  in  any 
way,  and  thus  one  and  the  same  tout  ensemble  of  perceptions  is 
continually  reproducing  itself  on  the  slightest  provocation.  Hence 
the  chain  of  association  loses,  in  the  eye  of  the  individual,  its 
accidental,  personal,  and  contingent  character,  and  by  its  constant 
recurrence,  deludes  the  understanding  with  the  idea  that  the  same 
connection  subsists  between  the  objects  in  reality  as  in  the  imagi- 
nation of  the  individual,  until  at  last  reason  herself  is  misled  into 
seeing  a  necessary  relation  of  cause  and  effect  in  the  perceptions 
Avith  which  it  finds  itself  invariably  associated.  The  individual  is 
therefore  compelled  to  think  accordingly  ;  and  even  if  he  is  some- 
times brought  by  instruction  to  acknowledge  his  error,  it  is  only  to 
relapse  into  it,  not  so  much  from  obstinacy  as  because  of  this  com- 
pulsory synthesis  of  the  perceptive  faculties.  A  sane  man  in  error 
retains  the  -power  of  doubting.,  not  the  madman.      This  condition  of 

'  Compare  Hagen,  vol.  ii.  p.  707. 

628 


DELUSIONS    AND    HALLUCINATIONS.  [§  729. 

the  perceptive  faculties  is  also  the  cause  of  the  great  indifference 
manifested  towards  surrounding  things,  of  the  dreamy  manner  and 
the  illusions  growing  out  of  it.  It  is  also  a  matter  of  course  that 
the  perceptions,  by  their  constant  recurrence,  cease  to  be  mere  per- 
ceptions, but  ultimately  take  rank  as  thoughts  and  ideas,  in  conse- 
quence of  their  constant  action  upon  the  understanding,  and  their 
assumption  of  the  form  of  propositions.^ 

§  728.    A  distinction  is  very  properly  drawn  by  Schiirmayer, 

following  in  this  respect  the  general  current  of  modern    ^,.  ,.    ,. 
_    ,        ^  ^       \  ^  ,        ^  Distinction 

opinion,  between  illusions  and  hallucinations,  the  former   between 
.   ,    ,  •       ,1  •  1    •    ,  illusions 

comprising  mistakes  m  the    conception  and  interpreta-    and  haiiu- 

tion  of  the  perception  of  objects  actually  present,  while    ^'^^^^o"^^- 
in  the  latter  the  perception  which  originates  in  a  diseased  action 
of  the  senses  appears  to  the  patient  as  if  the  sensation  were  pro- 
duced by  a  real  external  object  acting  upon  the  senses.^ 

The  distinction  is  thus  stated  by  Dr.  Taylor :  "  hallucina- 
tions are  those  sensations  "which  are  supposed  by  the  patient  to 
be  produced  by  external  impressions,  although  no  material  objects 
may  act  upon  the  senses  at  the  time.^  Illusions  are  the  sensations 
produced  by  the  false  perceptions  of  objects."*  "  When  a  hallu- 
cination," he  proceeds  to  say,  "  or  an  illusion  is  believed  to  have  a 
real  and  positive  existence,  and  this  belief  is  not  removed  either 
by  reflection  or  an  appeal  to  the  senses,  the  individual  is  said  to 
labor  under  a  delusion;  but  when  the  false  sensation  is  immedi- 
ately detected  and  is  not  acted  upon  as  if  it  were  real,  then  the 
person  is  sane." 

§  729.  "  As  a  morbid  condition  of  the  brain,"  says  Sir  Ben- 
jamin Brodie,  "  may  produce  the  impression  of  visible  objects,  or 
of  voices,  which  have  no  real  existence,  so  it  may  also  produce 
notions  of  a  more  complex  and  abstract  character,  and  these  may 
be  constantly  obtruded  on  the  mind,  so  that  the  individual  is  unable 
to  withdraw  his  attention  from  them,  being,  as  it  would  seem,  as 
much  beyond  the  influence  of  volition  as  the  muscles  of  a  paralytic 
limb.     Thus,  one  person  believes  himself  to  be  ruined  as  to  his 

'  Ellin!  er,  p.  818.  *  Taylor's  Medical  Jurisprudence,  p. 

2  Schiirmayer,  Gericlit.  Med.  §§  554.  552.     See  a  remarkable  case,  combin- 

3  See,   on  this   subject,  remarks  by  ing  the  characteristics  of  delusions  and 
Dr.  Sigmond,  Jour,  of  Psychol.  Med.,  illusions,  21  Journ.  Ment.  Sci.  226. 

p.  585,  1848. 

629 


§  731.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

worldly  affairs,  and  that  he  and  his  family,  though  really  in 
affluence,  are  reduced  to  extreme  poverty  ;  while  another  is  per- 
suaded that  he  is  in  possession  of  unbounded  wealth,  the  conse- 
quence being  that  he  is  in  danger  of  being  ruined  by  extravagance ; 
and  a  third  is  under  the  apprehension  of  his  being  accused  of  some 
dreadful  crime,  and  perhaps  seeks  refuge  from  his  fears  in  self- 
destruction.  It  is  more  difficult  to  escape  from  the  latter  than  from 
the  former  class  of  illusions,  as  the  appeal  lies  not  from  one  sense 
to  another,  but  to  a  more  refined  process  of  thought  and  reflection 
and  the  examination  of  evidence."^ 

§  730.  A  writer  of  much  acuteness,  Dr.  Hammond,  of   New 
York,  has,  as  has  already  been  noticed,^  distinguished 

Dr.  Ham-  illusions  and  hallucinations  on  the  one  side,  from  delu- 
mondstest  ^  ' 

of  the  dis-     sions  on  the  other,  by  declaring  that  of  the  falsity  of  the 

tinction.  .  i    i     n      •       ,•        \      m  •      , 

first  (illusions  and  hallucinations),  the  patient  may  or 
may  not  be  conscious,  but  that  of  the  falsity  of  the  latter  he  is 
unconscious.  The  difficulty  as  to  this  distinction  is  that  illusions 
and  delusions  are  often  used  convertibly  ;  and  that,  in  addition,  the 
distinction  amounts  to  no  more  than  saying  that  as  to  illusions  and 
hallucinations  the  patient  is  open  to  reason,  and  is  therefore  sane  ; 
but  that  as  to  delusions  he  is  not  open  to  reason,  and  therefore  is 
insane.  But  this  is  in  conflict  with  the  almost  universal  practice  of 
medical  psychologists,  which  is  to  speak  of  illusions  and  hallucina- 
tions as  among  the  symptoms  of  insanity. 

§  731.  A  question  of  much  medico-legal  importance  has  arisen  in 

-^  T    .  this  connection  as  to  whether  insane  illusions  or  halluci- 

Delusions 

no  defence  nations  ("  delusions"  as  they  would  be  called  if  the 
not  their  nomenclature  above  mentioned  be  adopted)  can  coexist 
product.  ^-^^-^  general  mental  soundness.  If  the  observations 
above  mentioned  be  correct,  the  question  is  to  be  answered  promptly 
in  the  negative.  He  who  conceives  a  tree  to  be  a  man,  or  a 
friendly  neighbor  to  be  a  robber,  and  who  cannot  be  reasoned  out 
of  such  conceptions,  is  insane.  The  degree  of  his  insanity,  how- 
ever, and  the  extent  to  which  it  divests  him  of  responsibility,  is  a 
question  for  distinct  consideration.  He  may  be  insane,  and  yet,  as 
to  acts  not  the  product  of  insanity,  he  may,  as  has  been  shown,  be 
responsible.^ 

'  Psychological  Inquiries,  etc.,  p.  79.         ^  See  supra,  §  312. 
London,  1854.  3  Supra,  §§  S'Jr-GO  ;  145. 

630 


DELUSIONS   AND    HALLUCINATIONS.  [§  733. 

§  732.  The  difficulty  here,  so  far  as  it  does  not  rest  on  a  con- 
fusion of  terms,  arises  from  the  erroneous  assumption  that  percep- 
tion is  an  independent  factor,  capable  of  independent  disease,  some- 
what in  the  same  way  that  a  mirror  in  a  chamber  may  be  broken, 
without  the  chamber  being  in  any  other  way  disturbed.  But  the 
perceptive  powers  are  not  a  mere  mirror.  "  All  perception  or 
knowledge,"  says  Mr.  Bain,^very  accurately,  "implies  mind.  To 
perceive  is  an  act  of  mind  ;  whatever  we  may  suppose  the  thing  to 
be,  we  cannot  divorce  it  from  the  percipient  mind."  In  sight,  for 
instance,  we  have  the  action  of  light  on  the  retina,  accompanied  by 
a  series  of  nerve  currents  and  other  influences  ;  but  the  "  mental 
phenomenon  is  the  feeling,  or  subject  state  accompanying  these," 
and  "  the  w^ord  (sight)  is  properly  applicable,  and  should  be  con- 
fined in  its  application,  to  the  strictly  mental  act."  A  child,  for 
instance,  sees  the  moon,  and  conceives  it  to  be  within  its  reach. 
Here  the  hallucination  rests  exclusively  on  defect  of  reason  ;  in 
other  words,  there  is  no  memory  to  recall  the  fact  of  failures  to 
grasp  the  moon  in  particular  or  objects  in  general  which  present 
themselves  to  the  eye  as  distant.  The  same  illusion  might  occur 
in  the  fatuous  imbecility  of  old  age.  Now  where  this  illusion  can- 
not be  reasoned  away — when  it  would  be  in  vain  for  us  to  say, 
"  try  to  seize  the  moon,  and  you  will  find  it  escapes  your  grasp," 
or  "  objects  having  the  appearance  of  distance,  as  you  will  learn 
through  memory  and  association,  are  proportionally  removed  from 
your  reach" — if  the  person  whom  we  address  is  incapable  of  thus 
reasoning,  then  he  is  mentally  unsound.  But  it  is  absurd  to  speak 
of  this  unsoundness  being  confined  to  this  particular  illusion.  It  is 
a  general  mental  unsoundness — i.  e.,  it  springs  from  the  weakness 
of  the  functions  of  memory  and  of  association,  which  are  among  the 
prime  factors  of  reason. ^  And  yet,  at  the  same  time,  the  unsound- 
ness may  not  reach  so  far  as  to  require  the  sequestration  of  the 
party,  and  the  declaration  of  his  irresponsibility .^ 

§  733.  So,  also,  with  regard  to  the  sense  of  sound.  A  person  of 
weak  nervous  system  is  wounded  by  a  gunshot,  and  ever  afterwards 
associates  a  noise  like  that  of  the  report  of  a  gun  with  severe  per- 

'  Bain's  Mental  and  Moral  Science,     may  be  supported  by  the  high  author- 
p.  196.     London,  1868.  ity  of  Uriesinger,  Ment.  Path.  §  47. 

2  See  supra,  §§49-60.  This  argument         3  Supra,  §§  46-60,  145. 

631 


§  735.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY, 

sonal  pain.  If  you  cannot  reason  this  away  by  experiment  or 
explanation,  then  the  patient's  mind  is  unsound.  He  is  not,  it  is 
true,  "  insane"  in  the  sense  of  being  subject  to  a  single  insane  illu- 
sion. His  mind  is  unsound  because  his  powers  of  memory  and 
association  are  so  perverted  and  disordered  that  he  treats  a  single 
instance  of  association  as  a  general  law.  The  derangement  arises 
from  the  debility  of  an  organ  essential  to  all  complete  mental  judg- 
ments. On  the  same  reasoning  may  be  explained  the  cases  of  sleep- 
drunkenness  Avhich  have  been  already  noticed.  A  hunter  in  his 
sleep  hears  a  noise  like  a  shot ;  he  springs  up  and  shoots  the  sup- 
posed assailant.  He  is  judged  irresponsible,  not  because  he  is  the 
victim  of  a  particular  insane  illusion,  but  because,  in  the  condition 
of  trance-like  dream  in  which  he  was  at  the  time  of  the  event, 
his  reason  was  suspended,  and  his  mind,  as  such,  not  only  in  this, 
but  as  to  all  other  processes  involving  memory,  association,  and 
discrimination,  was  deranged. 

§  734.  So,  also,  with  the  common  monomaniac  delusion  of  perse- 
cution. A  man  believes  himself  to  be  persecuted  by  all  mankind ; 
that  he  is  the  victim  of  a  conspiracy  to  poison ;  that  he  is  beset  by 
evil  spirits  in  the  shape  of  men.  There  is,  however,  no  distinctive, 
collateral,  independent  mania  about  this,  capable  of  existing  when 
the  mind  itself  is  sound.  The  mind,  in  such  a  case,  is  unsound. 
The  unsoundness,  it  is  true,  may  only  exhibit  itself  in  this  particular 
method  in  the  same  way  that  an  irritable  temper  discharges  itself 
on  some  particular  object.  The  cause,  in  the  first  case,  is  in  the 
mental  derangement  which,  when  one  illusion  is  dispelled,  seizes  on 
another,  just  as  the  irritable  temper  pounces  on  object  after  object 
on  which  it  may  successively  vent  itself  while  the  ill-humor  lasts. 

Here,  then,  arises  the  interesting  question,  when  do  the  powers 
of  memory,^  of  association,  of  discrimination,  become  so  enfeebled 
or  perverted  as  to  constitute  incompetency  and  irresponsibility  ? 

§  735.  Psychologists  have  failed  in  supplying  any  such  uniform 
OuestioB  *®^^-  -^-'^^^  question  must  be  determined  concretely  as  to 
determined  each  caso  by  the  history,  conduct,  examination  of  the 
stenceT^"  patient  himself.  It  may,  however,  be  generally  said  that 
each  case-.  ^^^^  ^  delusion  is  transient ;  when  it  is  capable  of  be- 
ing repressed  ;  when  the  patient  takes  steps  which  show  that  he 

'  See  23  Jouru.  Ment.  Sci.  609. 

632 


DELUSIONS    AND    HALLUCINATIONS. 


[§  737. 


is  conscious  of  its  unreality  ;  when  it  can  be  dispelled  by  the  force 
of  countervailing  considerations  ;  then  mental  unsoundness  is  not 
to  be  assumed.  It  is  otherwise  when  the  delusion,  however  it  may 
be  concealed,  is,  on  the  one  side,  in  itself  palpably  absurd,  and  yet, 
on  the  other  side,  it  is  cherished  by  the  patient  as  a  radical  belief.^ 

§  736.  If  such  be  the  case,  then,  as  to  acts  which  are  the  pro- 
ducts of  such  delusion,  the  patient  is  to  be  regarded  as  incompetent 
and  irresponsible.^  And  as  to  acts  not  the  result  of  such  delusions, 
his  mind  may  be  regarded  as  so  enfeebled  or  confused  as  to  subject 
him  only  to  a  diminished  criminal  responsibility.^ 

§  737.  "The  most  general  and  most  important  sensitive  ano- 
malies in  states  of  mental  disease,"  says  Griesinger,  "  are    ^^ 

'         -^  .        .  Observa- 

the  hallucinations  and  illusions.     By  hallucinations  Ave    tions  of 

understand  subjective  sensorial  images,  which,  however,    on  distfnc- 

are  projected  outwards,  and  thereby  become  apparently    tween'^iiiu- 

obiects  and  realities.     By  an  illusion  is  meant  the  false    ^^'^^^  ^^^^ 

'-'  ^  "^  _  ,  hallucma- 

interpretation  of  an  external  object.     It  is  an  hallucina-   tions. 


'  An  Esop,  to  adopt  an  illustration 
of  Dr.  Liman,  fancies  himself  an 
Adonis,  or  a  Xantippe  thinks  proper 
to  regard  herself  as  a  woman  of  soft 
and  tender  beauty.  Now  such  assump- 
tions flatly  contradict  the  truth,  as  it 
is  regarded  by  the  great  body  of  man- 
kind. People  such  as  these  are  called 
"  fools,"  though  no  one  thinks  of  lock- 
ing them  up  in  a  mad-house.  For 
"Esop"  is  not  a  real  believer  in  the 
delusion.  If  he  is,  why  does  he  dye 
his  hair  ?  And  why  does  Xantipi^e  paint 
her  cheeks,  and  resort  to  so  many 
devices  to  cover  the  reality  of  old  age  ? 
Yet  at  the  same  time,  as  is  further 
illustrated  by  this  acute  observer,  it  is 
not  always  easy  to  mark  in  tliem  the 
point  at  which  sane  folly  passes  into 
insane  folly.  Thus  a  wise  parsimony, 
by  scarcely  perceptible  steps,  may  be- 
come avarice  ;  and  avarice  may  over- 
step the  limits  of  sanity,  and,  under 
the  influence  of  insane  illusions,  refuse 
to  eat,  for  fear  of  starvation.  The  only 
question  in  each  case  is,  is  there  with 


the  patient  a  delusion  really  insane, 
and  if  so,  did  the  delusion  produce  the 
litigated  act  ?  And  this  is  to  be  deter- 
mined according  to  general  psycholo- 
gical and  psychopathical  tests.  And 
it  has  been  well  said  by  an  eminent 
writer  on  this  topic.  Dr.  Sander  (cited, 
Liman's  Casper,  p.  554),  that  in  con- 
ducting the  inquiry  we  are  not  to  be 
so  much  governed  by  the  specific  fancy 
in  question,  or  by  this  or  that  illusion, 
as  by  the  patient's  original  psycholo- 
gical state,  by  the  cause  and  course  of 
the  disease,  in  short,  by  its  develop- 
ment as  a  whole.  "  For  in  such  cases 
we  must  fall  back  on  the  development 
— ^liistoiy  of  the  concrete  case." 

See  Les  Le9ons  Cliniques  de  M.  Fal- 
ret,  Lecjons  3,  4,  5,  6,  pp.  95,  185,  Paris, 
1854  ;  also  Etudes  Psychologiques,  par 
L.  F.  Gr.  Renaudin,  chap.  viii.  p.  388, 
Paris,  1854  ;  and  also  Dr.  Hammond's 
Essay  on  McFarland's  Case,  4  Ham- 
mond's Journ.  Psyc.  Med.  449. 

2  Supra,  §§  46-60,  145. 

^.  Supra,  §  200. 

633 


§  737.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOaiCALLT. 

tion  when  I  see  human  forms  while  in  reality  no  man  is  near,  or 
hear  a  voice  which  has  not  spoken.  It  is  an  illusion  when  I  take  a 
bright  cloud  in  the  heavens  for  a  fiery  chariot,  or  when  I  believe 
that  I  see  an  old  friend  when  a  stranger  walks  into  the  room.  In 
hallucination  there  is  no  external  object,  it  is  a  false  sensation ;  an 
illusion  is  a  false  construction,  a  transformation  of  a  peripheral 
sensation. 

"  The  motive  of  this  sensation  does  not  necessarily  require  to 
exist  in  the  external  world ;  it  may  also  be  within  the  special 
organism  ;  therefore  the  false  interpretations  to  which  peripheral 
pains  (neuralgic,  rheumatic)  are  subject,  are  considered  illusions, 
as  the  idea  of  being  pregnant,  which  proceeds  from  unusual  ab- 
dominal sensations,  or  that  case  mentioned  by  Esquirol,  in  which  a 
patient  had  pain  in  the  knee,  and  kept  striking  it  with  the  fist,  call- 
ing out,  '  Wait,  you  rascal,  you  shall  not  escape  me  !'  "^ 

"  The  distinction  between  hallucinations  and  illusions  was  made 
by  Esquirol.  It  ought  to  be  maintained,  although  it  cannot  be 
adhered  to  with  perfect  exactness. 

"  In  the  senses  of  taste  and  cutaneous  sensation  especially  the 
distinction  is  often  impossible.  In  the  other  senses,  too,  the  view 
of  illusions  as  false  judgments  is,  in  many  cases,  too  limited.  They 
are,  in  the  majority  of  cases,  actual  transformations  of  impressions 
transmitted  by  the  organs  of  sense,  when,  for  example,  a  portrait 
on  the  wall  appears  to  roll  its  eyes  and  walk  out  of  the  frame,  or 
when  the  visage  of  an  old  woman  appears  to  be  young  and  beau- 
tiful. 

"  Here  internal  images  are  substituted  for  real  perceptions  ;  it  is 
a  mixture  of  hallucination  and  real  sensorial  perception ;  the  latter 
becomes  thereby  transformed  in  the  sense  of  the  dominant  ideas 
and  frames  of  mind.  We  can  also  express  the  relation  between 
them  so  ;  the  hallucinations  are  either  quite  complete  when  they 
provide  the  entire  object,  or  they  are  incomplete  (illusions)  when  to 
a  real  external  object  other  qualities  which  it  does  not  possess  are 
attributed. "2 

'  Griesiuger's  Mental  Pathol.,  Syden.  Esquirol,  several   articles   in  Diction- 

ed.  (1867),  §  52.  nairedes  Sciences  Medicales,  and  Traite 

2  Gratiolet.  de  1' Alienation.     Bayle,  M6m.  sur  les 

The  following  is  given  by  Griesinger  Hallucinations,    Revue     Medic,    Jan. 

as  the  literature  of  sensorial  delirium  :  1825.      Miiller,    Ueber    phantastische 

634 


DELUSIONS   AND   HALLUCINATIONS.  [§  738. 

"  Hallucinations,"  continues  Griesinger,  "  may  occur  in  all  the 
senses — in  the  senses  of  sight,  hearing,  smell,  taste,  and  cutaneous 
sensibility.  In  individuals  sometimes  this,  sometimes  that,  fre- 
quently several,  occasionally  all,  these  various  sensorial  functions 
are  affected  at  the  same  time ;  the  hallucinations  are  real  sensa- 
tions, not  mere  fancy.  The  patient  really,  and  not  merely  fanci- 
fully, thinks  that  he  hears,  sees,  and  smells  ;  and  should  we  meet 
the  sensorial  delirium  with  arguments  of  reason,  we  generally 
receive  answers  such  as  Leuret  did  from  one  of  his  patients:^  'I 
hear  voices  because  I  hear  them — how  they  originate  I  know  not, 
but  to  me  they  are  as  distinct  as  your  own  voice  ;  if  I  admit  the 
reality  of  your  words,  you  must  also  allow  me  to  believe  in  the 
reality  of  those  voices,  as  to  me  both  are  equally  appreciable.' " 

§  738.  Delusion  may  spread  in  such  a  way  as  to  cover  the  whole 
surface  of  the  mind,  leaving  no  so^^nd  perception  un-   „  . 

touched.  Dr.  Rush,  in  the  following  report  given  by  general  in- 
him  of  the  conversation  of  a  patient  laboring  under  this  duced  by 
phase,  very  happily  illustrates  this  incoherence,  and  at  <^  "^^loi^s- 
the  same  time  the  occasional  point  by  which  its  intellectual  opera- 
tions are  distinguished:  "No  man  can  serve  two  masters.  I  am 
Philip,  King  of  Macedonia,  lawful  son  of  Mary  Queen  of  Scots, 
born  in  Philadelphia.  I  have  been  happy  enough  ever  since  I 
have  seen  General  Washina;ton  with  a  silk  handkerchief  in  Hio;h 
Street.  Money  commands  sublunary  things,  and  makes  the  mare 
go  ;  it  will  buy  salt  mackerel  made  of  ten-penny  nails.  Enjoy- 
ment is  the  happiness  of  virtue.     Yesterday  cannot  be  recalled.     I 

Gesichtserscheinungen,  Coblenz,  1826.  wise  the  -vrritings  of  Arnold,  Reil,  Has- 

Lelut,  De  la  Folie  Seiisoriale,  Gazette  lam,  Hoffbauer,  Neumann,  Friedrich, 

Med.,  1833.     Boid,  Thatsachliche  Be-  Jessen,  Archambault  in  Ellis's  Traite, 

merkungen    iiber   Sinnestanschungen,  p.   180,    segg.,    etc.      Sinogowitz,    Die 

Friedricli's   Magazin,    Sept.    17,  1831.  Geistesstbrungen,    Berlin,    1843.     Mi- 

Dietz,  Ueber   die   Quelle  der   Sinnes-  chea,  Du  Delire  des  Sensations,  Paris, 

tanscliungen,    ibid.,    Heft    111,    1832.  1846.     Baillarger,  Des  Hallucinations, 

Leuret,      Fragmens      psychologiques,  Mem.  de  I'Acad.  de   Med.,   tome  12e, 

Paris,  1834.     Bottex  sur  les   Halluci-  Paris,  1846.     Brierre,  Des   Hallucina- 

nations,    Lyon,   1836.     Marc,   Geistes-  tions,  Paris,  1847  (2d  edition,  1853). 

kranklieiten   translated   by   Ideler,  i.  Leubuscher,  Ueber  die  Ensteliung  der 

1843.    Hagen,  die  Sinnestanschungen,  Sinnestanschungen,  Berlin,  1852.    See, 

Liepzig,   1837.     Baillarger,  in  Archiv  also,  24  Journ.  Ment.  Sci.  97 ;  22  ibid. 

Gener.     1842-3.       Patterson,     Annal.  475. 

M6d.   Psycholog.,   Mars,    1844.     Like-  '  Fragments,  p.  203. 

635 


§  740.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

can  only  walk  in  the  night-time  when  I  can  eat  pudding  enough.  I 
shall  be  eight  years  old  to-morrow.  They  say  R.  W.  is  in  partner- 
ship with  J,  W.  I  believe  they  are  about  as  good  as  people  in 
common — not  better,  only  on  certain  occasions,  when,  for  instance, 
a  man  wants  to  buy  chincopins,  and  to  import  salt  to  feed  pigs. 
Tanned  leather  was  imported  first  by  lawyers.  Morality  with  vir- 
tue is  like  vice  not  corrected.  L.  B.  came  to  your  house  and  stole 
a  coffee-pot,  in  the  twenty-fourth  year  of  his  majesty's  reign. 
Plum-pudding  and  Irish  potatoes  make  a  very  good  dinner.  No- 
thing in  man  is  comprehensible  in  it-  Born  in  Philadelphia.  Our 
forefathers  were  better  to  us  than  our  children,  because  they  were 
chosen  for  their  honesty,  truth,  virtue,  and  innocence.  The 
Queen's  broad  R  originated  from  a  British  forty-two  pounder, 
which  makes  too  loud  a  report  for  me.  I  have  no  more  to  say.  I 
am  thankful  I  am  no  worse  this  season,  and  that  I  am  sound  in 
mind  and  memory,  and  could  steer  a  ship  at  sea,  but  am  afraid  of 

the  tiller Son  of  Mary  Queen  of  Scots.      Born  in 

Philadelphia.     Born  in  Philadelphia.     King  of  Macedonia."^ 
§  739.    Hallucinations   involving  a  belief  that  the  patient  has 
been  transformed  into  various  species  of  animals  have 

Epidemic  .  .  i       •  a       i  i  • 

character  been  at  timcs  almost  epidemic.  Analogous  to  these  is 
nations^as'    ^^^®  belief  that  worms,  frogs,  or  snakes  have  taken  up 

to  loss  of  their  abode  in  the  head  or  stomach,  which  consume  the 
identity.  _  _  _' 

brain  or  entrails.  Men  have  fancied  themselves  preg- 
nant, and  imagined  themselves  shadows  or  corpses,  or  to  be  con- 
structed of  glass,  butter,  or  wax.  At  one  time  the  belief  in  a 
transformation  into  wolves  or  other  wild  animals  became  so  preva- 
lent as  to  acquire  a  title  to  itself  (Lycanthropia).  In  cases  of  this 
last  phase  the  disease  became  so  uncontrollable  as  to  impel  its 
yictim  to  a  close  imitation  of  the  wild  animal  itself,  falling  upon 
other  men  and  animals,  and  snapping  at  and  biting  them.  Andral 
relates  a  case  of  a  child  of  fourteen  years  who  tore  wildly  about 
the  field,  biting  other  children  that  came  in  its  way,  and  producing 
an  epidemic  consternation  in  the  neighborhood.^ 

§   740.    Griesinger   thus  speaks    of    hallucinations    of  loss    of 

•  Eush  on  the  Mind,  pp.  242,  243.         will  find  a  very  interesting   disquisi- 
2  Coiirs   de   Patholog.  Interne,  tome     tion  on  this  point  in  Wierus's  work,  De 
iii.,  Paris,  1836,  p.  176.     The  curious     Prsestigiis  Dsemonum,  lib.  iv.  c.  23. 

636 


DELUSIONS    AND    HALLUCINATIONS.  [§  740. 

identity:    "The  patients   renounce  their  former  perso-    Observa- 
nality,     and     consider    themselves    sometimes    animals    Griesino-er 
(wolves,    oxen,     etc.),    sometimes    historic    individuals   ^"^  .*^^^ 
(Napoleon).     Sometimes  the  whole  body  is  considered 
dead,  or  as  not  really  theirs,  or  as  composed  entirely  of  inanimate 
substances,  as  wood,  glass,  wax,  butter,  etc.     At  other  times  the 
body  is  merely  felt  to  be  extraordinarily  heavy,  or  to  have  acquired 
a  very  great  circumference,  etc. 

"  On  the  other  hand,  these  anomalies  of  the  general  sensation 
are  sometimes  local,  confined  to  certain  parts  of  the  organism.  The 
patient  supposes  that  certain  of  his  members  are  wanting,  or  that 
they  are  not  connected  to  his  body  in  the  Avay  they  used  to  be. 
For  example,  he  thinks  that  he  no  longer  has  a  head,  that  one  of 
his  arms  or  legs  is  petrified  or  made  of  glass,  or  he  feels  as  if  a 
certain  part  were  uncommonly  large,  and  the  nose  in  particular  is, 
in  many  cases,  the  object  of  this  illusion. 

"  There  are,  besides,  observed  in  the  insane,  as  more  transient 
states,  sensations  familiar  to  many  healthy  persons  in  dreaming,  of 
flying  high  in  the  air,  of  being  precipitated  from  a  height,  or  of 
general  giddiness.  Sometimes  a  veritable  aura  is  felt  before  an 
attack,  as  it  is  before  an  epileptic  seizure. 

"  The  seat  and  the  more  immediate  causes  of  these  anomalies  of 
the  general  sensation  are  difficult  to  understand.  In  several  cases, 
indeed,  they  depend — for  example,  the  feeling  of  absence  of  a  part 
of  the  body— on  evident  anaesthesia,  or  more  frequently  an  analge- 
sia of  the  organ.  At  other  times,  however,  the  peripheral  sensi- 
bility of  the  cutaneous  surface,  and  perhaps  even  the  sensibility  to 
pain,  is  fully  maintained,  and  obscure  modifications  of  the  muscular 
sensibility,  Avhich  likewise  appear  to  play  an  important  part  in 
ordinary  dreaming,  may  be  the  original  disorder  which  the  ex- 
planatory reflection  lays  hold  of  to  form  delirious  conceptions.  The 
transformation  into  animals  appears  to  be  much  more  related  to  the 
mind  in  its  origin,  and  the  basis  of  this  false  idea  may  depend  on 
the  appearance  and  influence  of  certain  instincts  peculiar  to  certain 
species  of  animals,  as  the  cruelty  and  ferocity  of  the  wolf.  But  here 
also  a  marked  deviation  from  the  normal  general  sensation  is  always 
necessary  to  the  full  development  of  the  ideal  metamorphosis.' 

1  Griesinger's  Mental  Pathol.  Syden.  Leuret  (Fragm.  Psycliol.  sur  laFoli^, 
ed.  (1867)  §49.  Paris,  1834,  p.  101)  has  made  an  in- 

637 


§  741.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

"  Examples  of  insane  persons  considering  themselves  dead,  and 
not  recognizing  their  body  as  their  own,  are  numerous.  Esquirol 
mentions  that,  in  a  woman  who  believed  that  the  devil  had  carried 
away  her  body,  the  surface  of  the  skin  was  completely  insensible. 

"  To  such  states  there  are  also  analogues  in  acute  diseases.  A 
medical  friend  has  frequently  told  me  that  he,  in  even  slight  febrile 
affections,  has  always  the  sensation  of  remarkable  enlargement  of 
the  limbs. 

"  A  convalescent  from  fever  believed  that  he  was  really  two  per- 
sons, one  of  whom  lay  in  bed  while  the  other  walked  about.  Al- 
though he  had  little  or  no  appetite,  yet  he  ate  a  great  deal,  because 
he  had  to  nourish  two  bodies.^ 

"  Patients  with  paralysis  of  sensation  of  one-half  of  the  body 
have  sometimes  the  idea  that  another  person,  or  even  a  corpse,  lies 
beside  them  in  bed.^  Such  false  opinions  belong  to  the  so-called 
illusions,  soon  to  be  considered. 

"  The  sensation  of  flying  in  dreams  appears  to  be  due  to  accele- 
ration of  the  inspiratory  movements,  and  that  of  being  drawn  from 
a  height  to  their  becoming  slower  (Gratiolet) ;  corresponding  images 
are  associated  with  these. 

"  All  considerable  alterations  of  the  common  sensation  are  always 
amongst  the  most  important  elements  of  mental  disease.  When  this 
general  basis  of  the  bodily  sensations  is  falsified,  corresponding 
false  ideas  are  formed  with  extreme  facility.  These  anomalies  are 
always  to  be  specially  investigated,  as  they  occasionally  furnish  in- 
dications for  therapeutical  treatment."^ 

§  741.  According  to  Hagen,^  the  cause  of  the  delusions  of  the 

teresting  collection  of  several  old  ex-  the  reason  why  my  skin  is  not  hairy 

amples  of  the  so-called  Lycanthropia,  like  that  of  a  wolf  is  that  it  is  reversed 

and  several  cases  of  more  recent  date  and  the  hairs  are  inside."    To  convince 

of  insane  persons  wandering    in   the  himself  of  this  he  made  incisions  in  his 

woods  and  carrying  off  and  even  kill-  hody  and  cut  his  legs  and  arms,  so  that 

ing  children,  from  a  fierce  instinct  to  he  died  of  the  wounds. 

murder.     Wier  narrates  an  example  of        •  Leuret,  loc.  cit.,  p.  95. 

a  man  from  Padua  who,  in  the  year         ^  Bouilland,  Traite  de  I'Encephalite, 

1541,  believed  himself  transformed  into  Paris,  1825,  p.  64. 

a  wolf,  and,  on  the  open  plain,  attacked         "  Ibid. 

and  slaughtered  those  whom  he  met.         *  Compare    Wagner's    Haiadworter- 

"  I  am  really  a  wolf,"  said  he,   "and  buch  der  Physiologic,  vol.  ii.  p.  811. 

638 


DELUSIONS    AND    HALLUCINATIONS.  [§  742. 

senses  is  either  a  mere  physical  stimulus,  which,  acting  upon  the 
fountain-heads  of  the  sensational  nerves  in  the  brain,  pro- 
duces eccentric  sensations,  and  induces  the  individual  to  theory  of 
incorporate  his  sensations  into  an  image,  in  which  case  lu^jong^*^^ 
it  will  depend  upon  the  particular  circumstances  of  the 
case,  especially  on  the  mental  and  moral  condition  of  the  individual, 
whether  or  not  such  apparitions  are  believed  to  be  genuine.  And 
upon  another  hypothesis,  suggested  by  the  same  author,  the  disease 
is  only  a  strong  morbid  susceptibility  of  the  brain  to  eccentric  sen- 
sations, with  which  some  fancy  or  other  comes  into  such  a  collision 
as  to  act  as  the  stimulating  cause  of  a  paroxysm,  bringing,  at  the 
same  time,  a  complete  phantom  before  the  external  sense,  just  as, 
in  cases  of  convulsive  diseases,  St.  Vitus's  dance,  etc.,  an  intended 
slight  motion  may  bring  a  convulsion  into  that  particular  system  of 
muscles.  Great  care  must  be  taken,  however,  not  to  include  under 
this  head  what  is  not  really  a  delusion  of  the  senses.  If,  for  in- 
stance, a  madman  takes  a  person  or  a  black  cat  for  the  devil,  there 
is  no  delusion  of  the  senses.  On  the  contrary,  in  supposing  the 
devil  to  have  assumed  such  a  shape,  the  maniac  only  directs  his 
madness  to  an  object  of  which,  in  itself,  he  has  a  correct  perception. 
Delusions,  also,  we  are  admonished  by  Schiirmayer,  must  not  be 
mistaken  for  confusion  of  the  senses,  which  consists  in  an  entire 
obstruction  of  the  conceptions,  an  incapacity  to  obtain  adequate 
apperceptions,  and  sometimes  in  an  entire  want  of  objective  con- 
sciousness and  recollection. 

§  742.  The  following  interesting  illustration  of  partial  delusion 
is  given  by  Dr.  Mayo  :  "  In  a  case  to  which  I  was  called 

T_      T\      TVT  r  -J.  •    r  ^     Illustration 

m  by  Dr.  Monro,  a  tew  years  ago,  it  was  our  pamiul  of  partial 
duty  to  resist  the  liberation  of  a  patient,  an  old  lady,  ^^a'o""^''^ 
whose  confinement  under  certificates  had  continued  for 
sixteen  years.  For  six  years  she  was  described  as  having  been  in 
a  state,  first  of  acute,  and  then  chronic  mania.  For  many  years, 
we  learned,  that  she  had  regained  the  power  of  conversing  consecu- 
tively and  sensibly,  indeed  without  the  smallest  evidence  of  inco- 
herent or  irrational  remark,  and  such  appeared  to  us  her  present 
state.  The  objections  which  existed  to  her  being  then  considered 
sane,  if  she  had  been  insane  up  to  the  time  we  saw  her,  on  the 
ground  of  her  advanced  age,  weighed  on  our  minds,  but  seemed  in- 
sufficient.   The  evidence  of  her  attendants,  who  considered  her  still 

639 


§  743.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

insane,  on  the  ground  of  occasional  outbreaks  of  temper,  was  that 
of  interested  witnesses.  She  was  a  patient  in  chancery,  and  the 
visiting  physicians  had  become  favorably  disposed  to  her  enlarge- 
ment, as  a  sound-minded  person.  Now,  the  question  was  in  this  in- 
stance determined  in  our  minds  by  a  discovery  of  a  very  remarka- 
ble notional  delusion  which  held  its  ground  in  her  mind.  In  a  set 
of  draAvers  in  this  lady's  bedroom,  and  in  certain  trunks  there,  to 
which  Ave  were  conducted  without  her  knowledge,  we  witnessed  a 
large  and  very  heterogeneous  and  dirty  collection  (dirtiness  had 
been  a  symptom  of  her  insane  state),  consisting  of  old  bottles, 
broken  cups  and  saucers,  brass  knobs,  bits  of  old  string,  shreds  of 
linen  and  cloth,  small  bundles  of  AA'ood,  such  as  light  fires,  pieces 
having  been  apparently  picked  up  and  tied  together,  a  cup  con- 
taining dirty  food  of  the  most  disgusting  appearance,  which  had 
evidently  been  long  there,  bits  of  valueless  stones,  coals,  nails,  etc. 
This  accumulation,  which  could  not  have  been  extemporized  by  the 
attendants  to  make  out  a  case,  and  of  which  accordingly  the  patient 
must  have  been  long  aAvare,  Avould  have  occasioned  strong  doubts  as 
to  her  sanity,  even  if  no  prior  grounds  of  suspicion  had  existed  ;  but 
carefully  preserved  by  one  who  up  to  a  recent  date  had  been  so  far 
suspected  of  insanity  that  she  had  not  been  set  free  by  the  visiting 
commissioners,  Avho  AA'as  in  her  seventy-first  year,  and  therefore  the 
less  likely  to  have  obtained  a  cure,  it  became,  in  the  opinion  of  Dr. 
Monro  and  myself,  a  conclusive  ground  for  resisting  this  lady's 
immediate  enlargement,"^ 

§  743.    Particular   hallucinations   are   classed   by  Abercrombie 
under  the  folloAving  heads: — 

ClaSSiflca-  -,         -n>  •    •  n        ^  I'llll  1 

tion  of  "1.  Propensities  oi  character,  Avhich  had  been  kept 

fucination  "    under  restraint  by  reason  or  by  external  circumstances  ; 

by  Aber-  ^^  old  habits,  Avhich  had  been  subdued  or  restrained,  de- 
crombie.  '  _       ' 

veloping  themselves  Avithout  control,  and  leading  the 
mind  into  trains  of  fancies  arising  out  of  them.  Thus,  a  man  of  an 
aspiring,  ambitious  character  may  imagine  himself  a  king  or  great 
personage ;  Avhile  in  a  man  of  a  timid,  suspicious  disposition  the 
mind  may  fix  upon  some  supposed  injury,  or  loss  either  of  property 
or  of  reputation. 

•  Mayo    on    Medical    Testimony    in     Dr.  Storer's  remarks  in  his  "Insanity 
Lunacy,    pp.    33,   34.      See,    however,     in  Women,"  p.  120. 

640 


DELUSIONS    AND   HALLUCINATIONS.  [§  743. 

"  2.  Old  associations  recalled  into  the  mind,  and  mixedup  perhaps 
with  more  recent  occurrences,  in  the  same  manner  as  we  often  see 
in  dreaming.  A  lady,  mentioned  by  Dr.  Gooch,  who  became  in- 
sane in  consequence  of  an  alarm  from  a  house  on  fire  in  her  neigh- 
borhood, imagined  that  she  was  the  Virgin  Mary,  and  had  a 
luminous  halo  around  her  head. 

"  3.  Visions  of  the  imagination  which  have  formerly  been  in- 
dulged in,  of  that  kind  which  we  call  waking  dreams,  or  castle- 
building,  recurring  to  the  mind  in  this  condition,  and  now  believed 
to  have  a  real  existence,  I  have  been  able  to  trace  to  this  source  of 
the  hallucination.  In  one  case,  for  example,  it  turned  upon  an 
office  to  which  the  individual  imagined  he  had  been  appointed  ;  and 
it  was  impossible  to  persuade  him  to  the  contrary,  or  even  that  the 
office  was  not  vacant.  He  afterwards  acknowledged  that  his  fancy 
had,  at  various  times,  been  fixed  upon  that  appointment,  though 
there  were  no  circumstances  that  warranted  him  in  entertaining  any 
expectation  of  it.  In  a  man,  mentioned  by  Dr.  Morison,  the  hallu- 
cination turned  upon  circumstances  which  had  been  mentioned  when 
his  fortune  was  told  by  a  gypsy. 

"  4.  Bodily  feelings  giving  rise  to  trains  of  associations,  in  the 
same  extravagant  manner  as  in  dreaming.  A  man,  mentioned  by 
Dr.  Rush,  imagined  that  he  had  a  Caffre  in  his  stomach,  who  had 
got  in  at  the  Cape  of  Good  Hope,  and  had  occasioned  him  a  con- 
stant uneasiness  ever  since.  In  such  a  case,  it  is  probable,  that 
there  had  been  some  fixed  or  frequent  uneasy  feeling  at  the  stomach, 
and  that,  about  the  commencement  of  his  complaint,  he  had  been 
strongly  impressed  by  some  transaction  in  which  a  Caffi'e  was  con- 
cerned. 

"  5.  There  seems  reason  to  believe  that  the  hallucinations  of  the 
insane  are  often  influenced  by  a  certain  sense  of  the  new  and 
singular  state  in  which  their  mental  powers  really  are,  and  a  cer- 
tain feeling,  though  confused  and  ill-defined,  of  the  loss  of  that 
power  over  their  mental  processes  which  they  possessed  when  in 
health."! 

The  law  with  regard  to  delusions  and  hallucinations  has  been 
discussed  in  prior  sections.^ 

1  Intellect.  Pow.  255,  256.  In  this  public  journal  from  an  insane  patient, 
connection  see  a  remarkable  letter  to  a     quoted  22  Jonrn.  Ment.  Sci.  454. 

2  Supra,  §§  34-(J0  ;   125-146. 

VOL.  I.— 41  641 


§  745.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


CHAPTER  IX. 


LUCID  INTERVALS. 


Law  recognizes  possibility  of  lucid  in- 
tervals when  proved,  §  744. 

Nature  of  lucid  intervals  ;  Renaudin, 
§745. 

Suggestions  of  Ellinger  and  Schiir- 
mayer,  §  746. 

Fluctuations  of  disease,  §  747. 


Restoration  of  responsibility  corre- 
sponds with  progress  of  recovery, 
§  748. 

Remarks  of  Dr.  Rush  on  this  topic,  § 
749. 

Mania  frequently  periodical,  §  750. 

Instance  given  by  Morel,  §  751 . 


Law  recog- 
nizes possi- 
bility of 
lucid  inter- 
vals when 
proved. 


§  744.  So  far  as  concerns  the  legal  relations  of  this  topic,  it  has 
been  shown^  that  the  law  recognizes  the  possibility  of 
lucid  intervals  in  insanity  (always,  however,  to  be  posi- 
tively and  affirmatively  shown),  during  which  the  patient 
is  to  be  viewed  as  capable,  when  acting  independently, 
of  certain  business  and  testamentary  acts,  and  of  assum- 
ing at  least  a  modified  penal  responsibility.  It  must  be  kept  in 
mind,  however,  that  by  many  eminent  psychological  physicians  the 
possibility  of  truly  lucid  intervals  is  denied. 

§  745.  As  a  leading  authority  of  this  school  may  be  mentioned 
Renaudin,  from  whose  argument  the  following  is  condensed :  — 

Lucid  interval  is  the  name  ordinarily  given  to  the  condition  in 
Nature  of  which  the  insane  person  is  placed  at  the  end  of  a  strong 
vais  •  Re-"^'   delirious  excitement,  or  when  he  awakes  from  a  profound 

naudin.  stupor. 

The  prevalent  tendency  is  to  assert  the  existence  of  a  lucid  inter- 
val when  delirious  ideas  no  longer  manifest  themselves,  and  when 
the  insane  person  shows  himself  accessible  to  other  pre-occupations, 
and  thus  appears  to  enjoy  the  full  amount  of  moral  liberty  allowed 
to  him. 

It  has  been  already  said  that  the  approach  of  insanity  is  rarely 
sudden,  and  that,  being  based  in  some  respect  upon  a  natural  or 


Supra,  §§  61-64. 


642 


LUCID   INTERVALS.  [§  745. 

acquired  predisposition,  it  is  preceded  by  a  period  of  incubation, 
that  paves  the  way  for  a  manifestation  of  the  disorder  often  long 
before  its  actual  appearance.  When  a  retrospective  examination 
of  the  antecedents  of  the  disease  is  made,  a  proof  is  found  of  the 
latent  advances  which  insanity  makes. 

But  under  this  apparent  reason  is  concealed  a  disorder  which 
makes  a  sensible  progression  every  day.  Irritability  is  developed; 
the  regimen  is  irregular ;  the  afiective  sentiments  are  changed  or 
perverted ;  everything  has  become  an  object  of  resistance  ;  deli- 
rious convictions  are  organized  upon  perceptive  errors  every  day 
more  numerous ;  and  finally  insanity  shows  itself  in  a  critical  ex- 
citement, the  more  decided  as  the  lesion  of  sensibility  has  become 
more  complete,  and  as  the  incubation  is  marked  by  a  more  or  less 
concentrated  struggle.  The  patient  is  then  isolated ;  irritating 
causes  are  removed,  and  immediately  the  over-excitement  dimi- 
nishes; a  calmness  succeeds.  This  transient  remission,  however, 
ceases  as  soon  as  the  unhealthy  influence  regains  its  empire,  and 
we  then  see  that  that  which  was  called  a  lucid  interval  was,  in  fact, 
but  a  transient  remission. 

Continuity  is  essentially  the  characteristic  of  monomania  and 
lypomania.  Either  the  insane  person,  by  a  convalescence,  advances 
to  a  complete  cure,  or  he  still  remains  affected  with  the  original 
type.  Every  intermediate  situation  is  inadmissible,  except  when 
an  accidental  affection,  causing  a  kind  of  metastasis,  for  the  moment 
suspends  or  masks  the  madness.  Whenever  it  is  not  a  true  crisis, 
it  only  causes  a  fleeting  remission  of  the  symptoms  rather  than  of 
the  pathological  condition ;  and  the  physician  assumes  a  serious 
responsibility  when,  simply  on  the  face  of  this  apparent  calm,  he 
conceives  the  possibility  of  the  patient's  return  to  his  family, 
where  but  too  soon  the  causes  will  be  found  reunited  that  restore 
to  insanity  all  its  intensity.  It  is  in  not  sufficiently  resisting  the 
desires  of  friends,  that  the  physician  paves  the  way  for  these  re- 
turns, which  are  less  relapses  than  the  recrudescence  of  an  uncured 
pathological  state. 

But  though,  in  an  absolute  diagnostic  point  of  view,  we  reject 
the  lucid  interval — though,  when  the  existence  of  mental  unsound- 
ness has  been  once  shown,  we  do  not  admit  that  the  remissions 
diminish  irresponsibility, — we  still  think  that  the  deranged  can 
perform  certain  acts  with  comparative  intelligence,  and  can  even 

643 


§  745.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

exercise  discretion,  provided  that  he  is  placed  under  the  influence 
of  certain  protecting  conditions.  The  regulating  discipline  of  an 
asylum  tends  greatly  to  this  result,  and  therefore  it  is  not  astonish- 
ing if  insane  patients  can  perform  certain  civil  acts  of  a  simple  char- 
acter, and  may  consent  to  a  division  of  property,  or  even  authorize 
a  marriage.  The  legality  of  the  act  is  essentially  subordinate  to  a 
previous  appreciation  of  the  extent  of  the  delirium  at  the  time,  and 
the  relations  existing  between  the  action  and  the  delirious  concep- 
tion. So,  though  not  admitting  the  existence  of  a  lucid  interval, 
we  still  believe  that  the  madman  may  be  placed  in  a  situation  that 
permits  him  to  appreciate  the  action  demanded  of  him.  In  a 
criminal  point  of  view,  this  distinction  cannot  be  established,  since 
the  action  is  a  logical  consequence  of  the  madness ;  and  daily  ob- 
servation teaches  us  that  it  is  during  these  moments  of  apparent 
sanity  that  the  maniac  meditates  and  prepares  the  most  dangerous 
projects,  as  much  against  himself  as  against  others.  The  ingenious 
combination  of  means  that  the  lypomaniac  uses  in  order  to  obtain 
his  object  is  urged  in  vain  as  proof  of  lucidity,  since  the  delirious 
conceptions,  whilst  rendering  the  premises  false,  are  far  from 
always  deranging  the  logical  chain  of  the  other  intellectual  ope- 
rations. According  to  his  own  conceptions,  the  lypomaniac  is  an 
oppressed  person  who  conspires  against  his  enemies,  and  as  he  is  the 
most  feeble,  he  calls  cunning  to  the  aid  of  his  legitimate  means  of 
defence. 

In  the  maniac,  especially  in  the  paroxysm,  we  observe  a  dis- 
ordered agitation,  accompanied  with  such  an  amount  of  incoherence 
that  the  afi'ected  person  appears  to  be  rather  the  sport  of  some 
strange  motive  power  than  the  originator  of  this  extreme  mobility. 
There  are  times  when  even  this  storm  is  dissipated  as  if  by  enchant- 
ment. Dissimulation  becomes  possible  for  a  certain  time ;  the 
delirium  is  in  some  degree  suspended,  and  Ave  may  be  led  to  sup- 
pose a  spontaneous  return  to  reason.  How  often  have  we  seen 
maniacs  cease  to  rave  during  the  questioning  of  a  judge,  and  im- 
mediately afterwards  recommence  their  course  of  wanderings. 

The  more  vivid  the  excitement  is,  the  more  considerable  is  the 
expenditure  of  the  vital  forces  ;  so  that  when  it  has  lasted  a  certain 
time,  a  period  of  prostration  arrives  ;  but,  allowing  a  remission  of 
some  somatic  symptoms,  still  the  incoherence  of  ideas  is  persistent 
with  other  symptoms.  Sometimes  the  transition  is  rapid ;  and 
644 


LUCID    INTERVALS.  [§  745. 

then,  above  all,  is  it  necessary  to  attribute  the  situation  to  its  true 
causes,  in  order  not  to  expose  the  examiner  to  an  error  of  diagnosis. 

Periodicity  is  generally  observed  in  mania  ;  and  it  is  then  that 
insanity  of  actions  must  be  distinguished  from  insanity  of  ideas. 
Though  often  united,  still  they  are  sometimes  isolated  from  each 
other,  or  follow  one  another.  It  is  on  this  account  that  the  most 
extravagant  acts  sometimes  correspond  with  a  certain  intellectual 
lucidity,  which  at  the  first  glance  may  impose  upon  us  ;  and  it  is 
then  that  we  observe  persons  thus  insane  justify  their  actions  by 
the  most  specious  reasonings.  We  must  not,  however,  take  this 
intellectual  waking  for  a  lucid  interval  ;  for,  although  masked,  the 
delirium  still  continues. 

In  other  cases,  the  madness  is  less  intense.  All  excitement  has 
disappeared,  and  the  insane  person  answers  all  our  questions  so 
reasonably  as  to  lead  us  to  infer  the  existence  of  a  lucid  interval ; 
but  the  illusion  is  soon  destroyed  when,  in  pushing  our  examina- 
tion, we  weary  him  with  questions :  he  becomes  agitated ;  loses  the 
thread  of  his  ideas  ;  becomes  more  and  more  incoherent,  and  so 
proves  to  us  that  he  has  had  what  scarcely  might  be  called  a  transi- 
tory remission. 

There  are  cases  where  the  periodicity  appears  more  determined, 
and  where  the  conduct  of  the  patient  betrays  no  sign  of  the  insanity 
which  he  formerly  manifested.  The  lucid  interval  can  perhaps  be 
sometimes  admitted  under  these  circumstances  ;  but  it  is  still  neces- 
sary to  exercise  some  caution  in  regard  to  the  value  of  these  ap- 
pearances. If  the  patient  denies  his  situation  ;  if  he  refuses  to 
acknowledge  the  principal  acts  which  have  characterized  his  par- 
oxysm ;  if  he  seeks  to  attribute  them  to  some  foreign  cause,  it  is  a 
proof  that  the  reason  is  not  sound,  and  that  a  paroxysm  is  always 
imminent ;  and  lucidity  cannot  be  admitted,  since  errors  of  percep- 
tion and  judgment  still  exist.  This  observation  especially  applies 
to  that  kind  of  mania  in  which  excessive  irritability  plays  the  prin- 
cipal part ;  where  the  remissions  are  irregular,  and  the  paroxysms 
are  shown  under  the  influence  of  the  slightest  cause.  We  cannot, 
then,  consider  this  momentary  repose  of  a  permanent  effect  which 
is  always  ready  to  break  out,  as  a  lucid  interval.  We  might  say 
as  much  of  the  period  of  prostration  following  a  period  of  strong 
excitement. 

When  periodicity  is  complete,  it  is  recognized  at  first  by  the 

645 


§  745.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSTCHOLOaiCALLT. 

appearance  of  the  paroxysm,  -which  has,  in  some  measure,  a  critical 
termination.  The  lucid  interval  can  then  be  admitted,  if  there  is  a 
complete  contrast  between  the  two  situations,  if  the  patient  appre- 
ciates them,  and  if  the  manifestation  of  each  fit  is  shown  by  an 
approach  which  is  always  regular,  and  which  is  always  produced 
under  the  influence  of  the  same  causes.  It  is,  if  we  can  thus  ex- 
press ourselves,  a  momentary  cure,  which  is  prolonged  for  a  longer 
or  shorter  period  of  time,  and  which  often  finishes  by  becoming  a 
complete  one. 

Finally,  when  the  affection  passes  to  the  chroiiic  state,  the  patient 
raves  less,  because  excitement  fails  him,  and  also  because  his  will 
is  in  want  of  a  recrulatino;  force.  We  cannot  consider  this  as  a 
lucid  interval  where  the  patient  is  unable  to  act  except  when 
directed  by  another's  mind.  When  mania  passes  into  dementia, 
the  transition  is  sometimes  shoAvn  by  an  apparent  reawakening  of 
reason,  which  is,  as  it  were,  its  last  glimmer.  Generally  it  is  the 
mobility  of  maniacs  which  is  most  favorable  to  the  inferences  which 
impose  upon  the  superficial  observer  so  as  to  cause  him  to  admit 
the  existence  of  a  lucid  interval. 

The  stimulated  attention  of  these  patients  fixes,  for  a  moment, 
this  mobility,  directs  cunning  towards  the  accomplishment  of  a 
project,  where  a  personality  is  in  play,  and  we  are  often  surprised 
with  the  address  shown  in  organizing  a  plan  of  escape.  But,  in 
spite  of  this  incidental  derivation,  the  maniacal  temperament  still 
remains  the  same,  unless,  indeed,  this  transitory  action  of  the  mind 
should  become  a  crisis. 

Dementia,  where  the  psychico-somatic  existence  is  gradually 
extinguished,  is  a  ruin  in  which  a  trace  of  a  better  period  is  some- 
times found.  If,  occasionally,  remembrances  of  the  past  show 
themselves,  this  apparent  lucid  interval  is  no  more  than  a  retro- 
spective reasoning  without  actual  application.  When,  instead  of 
being  the  termination  of  the  other  forms,  dementia  is  primitive  or 
idiopathic,  the  lucid  intervals  can  be  sufficiently  clearly  drawn,  and 
the  diagnosis  does  not  present  as  many  difficulties  as  in  the  other 
forms.  In  fact,  the  demented  cannot  dissimulate  ;  since,  to  do  this, 
a  reactive  power  would  be  necessary,  which  in  him  is  entirely 
wanting.  He  cannot  conceal  his  incapacity  under  the  mask  of  an 
energy  whose  absence  is  the  principal  feature  of  his  disease.  More 
submissive  than  others  to  somatic  influences,  he  is  sometimes  a 
646 


LUCID   INTERVALS.  [§  746. 

prey  to  an  almost  maniacal  excitement ;  but  if  this  is  not  critical,  it 
forms  an  expenditure  of  power  resulting  in  pure  loss,  and  making 
one  more  step  in  this  period  of  prostration.  In  a  word,  if  the  man 
lives  for  a  moment  in  the  past,  he  is  as  nothing  in  the  present ;  and 
it  is  under  privilege  of  this  restriction  that  a  lucid  interval,  pro- 
voked by  some  foreign  stimulant,  but  without  root  in  an  exhausted 
moral  system,  can  be  admitted. 

Hence  we  see  that  the  lucid  interval  is  of  much  rarer  occurrence 
in  mental  unsoundness  than  is  generally  thought.  It  is  in  mania 
that  the  periodicity  of  regular  paroxysms  permits  us  to  admit  it ; 
but  then,  also,  it  is  still  necessary  to  guard  against  being  imposed 
upon  by  a  remission  of  excitement  which  is  not  that  of  the  frenzied 
condition.^ 

§  746.  The  following  suggestions   are    given  by  Ellinger,  and 
repeated  by  Schtirmayer.     As  a  general  thing,  there  is    <,     ^ 
no  recovery  from  mental  unsoundness   which  has  been   tions  of 

.  .  .  Elling-er 

attended  with  permanent  and  general  delusion  :  in  the  and  SchUr- 
other  forms  such  recovery  sometimes,  though  very  rarely,  ^^y^""- 
takes  place  suddenly,  the  consequence  of  strong  excitement,  as  a 
sudden  outburst  of  rage,  or  even  in  sleep,  without  any  preceding 
physical  or  moral  change.  Its  general  development,  however,  is 
slow,  being  marked  with  a  gradual  lessening  of  the  effective  irrita- 
tions, with  an  increased  coherency  and  consequentiality  of  thought, 
with  the  return  of  the  natural  inclinations  and  appetites,  of  sleep 
and  nourishment,  and  with  a  disappearance  of  the  physical  anoma- 
lies. Sometimes,  however,  it  advances  with  a  more  fluctuating 
step,  agitated  as  it  were  with  mental  tides,  the  flood  of  each  of 
which,  however,  falls  below  the  high-water  mark  of  its  predecessor, 
while  each  ebb  more  and  more  nearly  approaches  the  line  of  sanity. 
To  constitute  a  recovery,  the  patient  must  at  least  have  regained 
the  reason  which  he  enjoyed  before  the  appearance  of  the  disease : 
he  must  have  reacquired  a  taste  for  his  former  occupation,  must 
again  display  his  former  inclinations  and  points  of  interest,  must 
understand  Avhat  he  remembers  of  his  disease  when  assisted  by 
explanations,  must  speak  of  it  as  of  something  to  which  he  is  now 
superior,  must  clearly  see  the  erroneous  nature  of  the  delusions 

'  See  Etudes  Physio-Somatiques  sur  I'Alienation  Mentale,  par  L.  E.  F.  Re- 
naadin,  chap.  ix.  p.  522.     Paris,  1854. 

647 


§  747.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

under  which  he  labored,  and  must  be  really  contented  and  internally 
at  peace.  But  if,  on  the  other  hand,  the  former  character  of  the 
disease  has  only  disappeared  in  part ;  if  the  old  insane  grudge 
against  one  person  or  another  is  manifested  ;  if  there  is  a  smothered 
rage,  or  aversion  to  persons  or  things  formerly  cherished  ;  if  the 
alleged  convalescent  refuses  to  acknowledge  his  disease  in  general 
or  in  regard  to  particular  points  ;  if  his  conduct  is  marked  by  un- 
natural irritability,  suspicion,  or  boisterous  and  immoderate  joy,  or 
by  other  anomalous  features,  a  perfect  recovery  has  not  taken 
place,  although,  in  point  of  intelligence,  formal  and  substantial,  not 
the  slightest  anomaly  is  perceptible.^ 

§  747.  Where  the  patient's  recovery  from  a  mental  disorder  is 
not  clearly  established,  it  may  be  doubted  whether  an 
tion  of  alleged  criminal  act  was  committed  under  circumstances 

involving  the  full  responsibility  of  the  agent.  Whether 
the  malady  was  of  long  or  short  duration,  whether  it  was  more  or 
less  intense,  is  here  of  no  decisive  import,  and  of  equally  little 
moment  is  the  apparent  reflection  and  preparation  with  which  the 
act  may  have  been  committed. 

The  different  kinds  of  improvement  or  interruption  in  cases  of 
unsoundness  of  mind,  present  various  features,  which  vary  in  accord- 
ance with  the  duration  and  degree  of  abatement. 

1.  Intervallum  lueidum,  with  a  restoration  of  consciousness  in 
general  and  of  insight  into  the  past  and  present,  but  without  entire 
clearness,  and  with  a  continuance  of  a  more,  though  not  entirely 
subdued  temperament.  The  patient  is  not  yet  the  same  as  he  was 
before  the  disease  overtook  him.  If  he  was,  he  would  have  to  be 
regarded  as  restored  to  health,  and  there  would,  in  its  strict  mean- 
ing, be  no  question  as  to  a  lucid  interval. 

2.  Remission  differs  from  a  lucid  interval  only  in  degree,  being 
generally  attended  with  a  subsidence  of  the  external  manifestations 
of  the  disease,  not  sufficient,  however,  to  be  mistaken  for  recovery. 

3.  Alternation  is  the  term  given  to  change  from  one  form  of 
mental  unsoundness  to  another,  particularly  from  depression  to 
mania  and  the  converse,  not  however  from  psychical  to  bodily,  or 
from  bodily  to  psychical  manifestations.  Where  for  instance  the 
individual  has  long  suffered  from  morbid  depression  or  elation  of 

'  Compare  Ellinger,  p.  169.     Schiirmayer,  §  573. 

648 


LUCID   INTERVALS.  [§  749. 

spirits,  this  may  gradually  decrease  and  give  place  to  an  apparent 
return  of  health,  which,  however,  does  not  last  long,  but  sooner  or 
later  lapses  into  the  opposite  condition,  so  that  depression  turns  into 
mania,  and  mania  into  depression. 

4.  Intermission^  when  the  disease  recurs  at  more  or  less  regular 
periods,  and  the  disease  presents  no  anomalous  symptoms. 

§  748.  The  restoration  of  moral  responsibility  progresses  in  cor- 
respondence with  the  progress  of  recovery.  In  passing.  Restoration 
therefore,  upon  a  given  case,  regard  should  be  had,  not   ^[il'^^y^OT-^' 

only  to  the  individual  circumstances,  but  also  to  the    responds 
.  ,  .  (.  .        with  pro- 

time   intervenmg   between   the  cessation  ot    patent  in-   gress  of 

sanity  and  the  commission  of  the  offence.^ 

§  749.  On  this  topic  Dr.  Rush  thus  speaks :  "  The  longer  the 

intervals  between  the  paroxysms  of  madness,  the  more 

.  -r»        •     •  ii  Remarks  of 

complete  is  the  restoration  to  reason.  Kemissions  rather  Dr.  Rush 
than  intermissions  take  place  when  the  intervals  are  of  ^^^^^^^ 
short  duration,  and  these  distinguish  it  from  febrile  de- 
lirium in  which  intermissions  more  generally  occur.  In  many  cases 
everything  is  remembered  that  passes  under  the  notice  of  the  patient 
during  a  paroxysm  of  general  madness,  but  in  those  cases  where  the 
memory  is  diseased  as  well  as  the  understanding,  nothing  is  recol- 
lected. I  attended  a  lady  in  the  month  of  October,  1802,  who  had 
crossed  the  Atlantic  Ocean  during  a  paroxysm  of  derangement, 
without  recollecting  a  single  circumstance  of  her  voyage  any  more 
than  if  she  had  passed  the  whole  time  in  sleep.  Sometimes  every- 
thing is  forgotten  in  the  interval  of  a  paroxysm,  but  recollected  in  a 
succeeding  paroxysm.  I  once  attended  the  daughter  of  a  British 
officer  who  had  been  educated  in  the  habits  of  gay  life,  who  was 
married  to  a  Methodist  minister.  In  her  paroxysms  of  madness, 
she  resumed  her  gay  habits,  spoke  French  and  ridiculed  the  tenets 
and  practices  of  the  sect  to  which  she  belonged.  In  the  intervals 
of  her  fits,  she  renounced  her  gay  habits,  became  zealously  devoted 
to  the  religious  principles  and  ceremonies  of  the  Methodists,  and 
forgot  everything  she  did  and  said  during  her  fits  of  insanity.  A 
deranged  sailor,  some  years  ago,  in  the  Pennsylvania  Hospital, 
fancied  himself  to  be  an  admiral,  and  walked  and  commanded  with 
all  the  dignity  and  authority  that  are  connected  with  that  high  rank 

>  Schiirmayer,  Gericht.  Med.  §  574. 

649 


§  751.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

in  the  navy.  He  was  cured  and  discharged  ;  Ms  disease  some  time 
afterwards  returned,  and  with  all  the  actions  of  an  admiral  which 
he  assumed  and  imitated  in  his  former  paroxysm.  It  is  remarkable 
that  some  persons  when  deranged  talk  rationally,  but  act  irration- 
ally, while  others  act  rationally  and  talk  irrationally.  We  had  a 
sailor  some  years  ago  in  our  hospital,  who  spent  a  whole  year  in 
building  and  rigging  a  small  ship  in  his  cell.  Every  part  of  it  was 
formed  by  a  mind  apparently  in  a  sound  state.  During  the  whole 
of  the  year  in  which  he  was  employed  in  this  work,  he  spoke  not  a 
word.  In  bringing  his  ship  out  of  his  cell,  a  part  of  it  was  broken. 
He  immediately  spoke  and  became  violently  deranged  soon  after- 
wards. Again,  some  madmen  talk  rationally  and  write  irrationally  ; 
but  it  is  more  common  for  them  to  utter  a  few  connected  sentences 
in  conversation,  but  not  to  be  able  to  connect  two  correct  sentences 
together  in  a  letter.  Of  this  I  have  known  many  instances  in  our 
hospital."^ 

§  750.   Mania  frequently  assumes  a  type  in  which  the  periods  of 
-.    .    .        return  and   of  cessation  are  marked  with  the  greatest 

Mama  ire-  _  _  ... 

quentiy  exactness  and  regularity .^  Medicus,  in  his  history  of 
periodical  diseases, ^  tells  us  of  a  girl  who  was  subject 
to  a  delirium  which  came  on  every  evening  at  exactly  the  same 
hour,  and  lasted  three  hours  and  a  half.  Of  two  women  attacked 
with  periodical  madness,  one  was  deranged  nine  days  in  each  month, 
and  the  other  two  days.* 

§  751.   Morel  (1836)^  tells  us  of  a  lady  who  for  a  number  of 
^    ,  years  was  afflicted  as  follows:    When  enjoying  the  full 

Instance  •'  ^  ,  .  . 

given  by        possession  of  her  faculties,  and  with  no  other  premoni- 

IMorcl 

tion  than  that  of  peculiar  health,  and  of  augmented  de- 
sire to  leave  the  asylum  in  which  she  was  confined,  she  would  fall 
into  a  sleep  marked  by  terror  (cauchemar)  and  excitement.  She 
would  soon  lift  herself  up,  and,  with  cries  of  horror,  spring  out  of 
bed.  The  fit  thus  began,  and  then  ran  through  its  course.  Her 
face  would  be  distorted,  she  would  refuse  nourishment,  beat  against 
the  wall,  and  bite  and  tear,  in  her  agony,  whatever  came  in  her 

•  Rush  on  the   Mind,  pp.  162,  163,  ■•  See  also  Henke's  Zeitschr.  13  Bd. 

164.  sec.  159. 

2  Siebold,  Gericht.  Med.  §  217.    .  «  Traite  de  la  Med.  Leg.,  etc.,  p.  479. 

3  Kailsr.  1764. 

650 


LUCID   INTERVALS.  [§  752. 

way.  About  the  twenty -first  day  from  the  beginning  of  the  attack, 
relief  would  begin,  and  she  would  fall  into  a  stupor,  and  then  gradu- 
ally return  to  sound  reason.  This  lucid  interval  would  last  about 
three  weeks,  during  which  she  would  be  in  all  respects  refined  and 
intelligent.  This  condition  has  lasted  thirteen  years,  with  no  other 
permanent  change  than  that  of  perhaps  a  slight  general  weakening 
of  intelligence. 

§  752.  Dr.  Liman,  whose  great  experience,  as  well  as  eminence, 
as  a  psychological  physician,  has  been  already  frequently  noticed, 
states^  that  practically,  so  far  as  concerns  the  German  criminal 
courts,  the  question  of  "  lucid  intervals"  comes  up  very  rarely  for 
adjudication.  "At  least,"  he  says,  "  among  the  hundreds  of  cases 
as  to  which  I  have  given  opinions,  there  was  not  one  in  which  the 
existence  of  a  '  lucid  interval'  was  the  subject  of  contest.  In  penal 
cases  the  defence  goes  beyond  this,  maintaining  the  existence  of 
actual  derangement  at  the  time  of  the  act,  or  assuming,  from  some 
prior  mental  malady,  that  the  defendant  at  the  time  of  the  act  was 
of  unsound  mind." 

1  Liman's  Casper,  1871,  p.  618. 

651 


§  753.]    'mental  unsoundness  considered  psychologically. 


CHAPTER   X. 

TREATMENT  OF  INSANE  CRIMINALS. 


Importance  of  issue,  §  753. 

I.  Retribution. 

Confinement  necessary  as  retribution, 
§  754. 

II.  Prevention. 
And  also  for  prevention,  §  763. 


III.  Example. 
And  also  for  example,  §  765. 

IV.  Reform. 
And  so  for  reform,  §  766. 


§  753.  The  enlargement  of  the  range  of  insane  irresponsibility 
Importance  "^hich  the  preceding  sections  recognize,  makes  the  sub- 
of  issue.  jggj.  Qf  ^-j^Q  subsequent  treatment  of  the  insane  offender 
of  momentous  importance.  Even  if  we  adopt  the  severest  legal 
tests,  yet  when  a  case  occurs  of  an  acquittal  on  ground  of  insanity, 
as  it  sometimes  must  on  the  most  stringent  principles,  the  offender, 
who  in  this  case,  on  the  law's  own  assumption,  is  a  mere  "  animal," 
should  be  no  more  permitted  to  range  the  streets  than  should  a  mad 
dog  or  a  mad  bull.  But  in  point  of  fact,  there  are  a  myriad  of 
phases  of  mental  unsoundness,  none  of  which  are  consistent  with 
entire  responsibility,  and  yet  each  of  which  has  its  distinct  degree 
of  moral  culpability  attached  to  it.  Rare,  indeed,  are  the  instances, 
where  there  is  not  a  consciousness  of  guilt,  which,  though  distorted 
or  faint,  is,  nevertheless,  appreciable.  Still  rarer  are  the  cases  of 
acquittal  in  which  the  insanity  of  the  perpetrator  is  so  abhorrent  as 
to  exclude  it  from  the  range  of  imitation  by  those  who  may  desire 
to  commit  crime  with  impunity.  And  if  these  considerations  be 
thrown  aside,  there  remains  the  fact  that  insane  crime  becomes  epi- 
demic when  it  becomes  heroic  ;  and  that  the  only  way  to  divest  it 
of  this  quality,  is  to  subject  it  to  that  wholesome  but  homely  dis- 
cipline which  strips  it  of  its  sentimentality,  and,  at  the  same  time, 
destroys  its  capacity  for  mischief.  In  this  view  it  is  recommended 
that  wherever  such  provision  does  not  already  exist,  there  should 
be  a  separate  penitentiary  establishment  for  insane  offenders,  where 
652 


TREATMENT    OF   INSANE    CRIMINALS. 


[§  754. 


they  may  continue  to  be  confined,  under  the  severest  discipline  con- 
sistent with  health,  until  it  appear,  on  evidence  taken  upon  due 
notice  to  the  prosecuting  authorities,  that  the  patient  is  entirely 
sane. 


Confine- 
ment neces- 
sarj'  as  re- 
tribution. 


I.    RETRIBUTION. 

§  754.  The  question  here  depends  on  that  of  guilt.  Was  the 
offender  in  any  sense  a  moral  agent  in  the  act  com- 
plained of  ?  The  answer  presupposed  by  the  present  in- 
quiry, viz.,  that  of  the  relations  of  a  person  judged  irre- 
sponsible on  account  of  insanity,  is,  that  he  was  not. 
And  in  a  strict  technical  sense,  this  is  undoubtedly  true.  The  in- 
quiry, however,  may  be  pushed  farther  back,  and  here  the  case  of 
delirium  tremens  may  be  taken  as  an  illustration.^  Delii-ium 
tremens,  even  on  the  most  stringent  principles,  exonerates  its  sub- 
ject from  the  penal  consequences  of  a  crime  committed  under  its 
direct  influence.  And  yet  it  is  clear,  first,  that  delirium  tremens 
is  the  result  of  a  prior  vicious  indulgence  ;  second,  that  if  the 
patient  be  permitted  to  wander  about  when  the  delirium  continues, 
he  will  do  further  mischief ;  and,  third,  that  if  he  escape  with  entire 
impunity,  the  example  will  be  likely  to  be  followed  as  a  pretext,  if 
not  caught  as  a  contagion.  And  under  these  circumstances  what  is 
to  be  done  ?  It  is  plain  that  some  species  of  confinement  must  be 
resorted  to  ;  and  that  if  such  a  method  of  discipline  be  applied,  it 
will  be,  in  a  moral  point  of  view,  thoroughly  justified  by  the  delin- 
quency which  was  the  voluntary  cause  of  the  diseased  mental  con- 
dition under  which  the  crime  was  committed.^ 


'  This  question  has  already  been 
touched  upon,  and  the  authorities 
bearing  upon  it  have  been  noticed. 
See  supra,  §  202.  In  opposition  to  the 
views  expressed  in  the  text  will  be 
found  Mr.  M.  B.  Sampson's  "Criminal 
Jurisprudence  considered  in  relation 
to  cerebral  organization."  London, 
1843. 

2  In  the  eighth  edition  of  my  work  on 
Criminal  Law,  published  in  1880,  §§  1 
el  seq.,  I  endeavored  to  show  that  penal 
discipline  was  to  be  primarily  based  on 
retributive  justice;    and  I   argued  at 


length  that  to  rest  punishment  pri- 
marily on  the  grounds  of  either  pre- 
vention or  of  reformation  was  (1)  to 
invest  the  state  with  despotic  preroga- 
tives ;  (2)  to  limit  punishment  to  the 
cases  where  prevention  or  reformation 
could  be  worked ;  and  (.3)  to  defeat  the 
very  object  in  view,  since  so  far  from 
unjust  punishment  (and  if  the  condi- 
tion of  justice  be  imposed,  then  the 
theory  of  prevention  or  of  reformation 
as  the  primary  object  is  abandoned) 
preventing  crime  and  producing  refor- 
mation, it  would,  in  2)roportiou  to  the 

653 


§  756.]      MENTAL   "UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

§  755.  What  has  just  been  said  of  delirium  tremens  applies  with 
greater  or  less  exactness  to  all  other  cases  of  mental  unsoundness. 
Insanity,  which  is  not  congenital,  or  the  result  of  accident  or  old 
age,  is  in  most  cases  the  result  of  causes  which  the  patient  himself 
might  have  averted  if  he  had  chosen.^  And  particularly  is  this  the 
case  with  that  very  species  of  mental  unsoundness — that  of  mono- 
mania, or  moral  insanity — which  is  the  cause  of  the  greatest  diffi- 
culty in  the  present  connection.  This  is  well  stated  by  Dr.  Barlow, 
in  his  essay  on  this  topic  :  — 

§  756.  "  I  have  said  that  mental  derangement  and  madness  are 
different  things  ;  thus,  a  person  may  fancy  he  sees  others  around 
him  who  have  no  existence,  as  in  the  well-known  cases  of  Nicholai, 
of  Berlin,  and  Dr.  Bostock.  This  is  a  certain  degree  of  mental 
derangement  while  it  lasts ;  but  as  both  soon  satisfied  themselves 
that  these  personages  were  merely  the  creation  of  a  morbid  physi- 
cal state,  they  were  not  mad.  A  man  of  less  resolution  would  have 
shrunk  from  the  labor  of  convincing  himself  that  he  was  fooled  by 
his  senses,  and  would  have  insisted  that  the  figures  were  real,  and 
then  he  would  have  been  mad.  Of  these  cases  Dr.  Connolly  very 
justly  remarks  :  '  Let  any  one  reflect  how  Nicholai  preserved  his 
reason  under  such  visionary  and  auditory  delusions  for  so  many 
months  ;  and  why  the  English  physiologist,  though  visited  with  the 
images  which  are  so  well  known  to  be  familiar  with  mad  people, 
never  lost  the  use  of  his  excellent  understanding.  The  ready 
answer  will  be,  they  never  believed  in  their  real  existence.  But 
why  did  they  not  ?  And  why  does  the  madman  believe  in  their 
real  existence  ?     The  evidence  of  both  is  the  same,  the  plain  evi- 

extentof  its  infliction,  engender  towards  of  the  ablest  publicists  and  jurists  of 
the  government  feelings  of  hatred  and  this  century,  and  Brinz,  one  of  the 
contempt  by  which  the  good  effect  of  most  authoritative  commentators, 
penal  discipline  would  be  destroyed.  Making  retributive  justice  the  primary 
The  only  way,  in  fact,  as  I  urged,  to  object  of  punishment  is  the  best  way, 
make  punishment  preventive  and  re-  as  is  elsewhere  shown,  to  secure  re- 
formatory, is  to  make  it  just.  In  a  form  and  pn^vention.  Unless  a  pun- 
review  of  my  book  in  the  Kritische  ishment  is  in  itself  just,  it  will  neither 
Vierteljahreschri/t  fur  Gesetzgebung  und  reform  the  criminal  nor  prevent  fur- 
Rechtsenssenschaft,  for  1881,  p.  274,  the  ther  crime.  Instead  of  repressing  and 
position  taken  by  me  is  declared  to  be  in  controlling,  it  will  exasperate  and 
accordance  with  the  views  of  the  editors  stimulate  to  fresh  lawbreaking. 
of  that  paper,  among  whom  at  the  time  '  See  supra,  §§  115,  118,  403,  where 
were  Bluntschli  (since  deceased),  one  this  subject  is  discussed. 

654 


TREATMENT    OP   INSANE   CRIMINALS.  [§  757. 

dence  of  sense.  The  explanation  must  be  this.  The  printer  of 
Berlin  and  the  physician  in  London  retained  the  power  of  com- 
parison :  they  compared  the  visual  objects  of  delusion  with  the 
impressions  of  other  senses  and  the  perceptions  of  other  persons, 
and  became  convinced  of  their  unreality.  '  This  is  exactly  what 
madmen  cannot  do.  One  form  of  madness  consists  in  this  very 
illusion  of  sense,  but  it  is  conjoined  with  the  loss  or  defect  of  the 
comparing  power,  and  the  madman  concludes  that  what  is  only  an 
illusion  is  a  reality.  But  the  illusion  is  not  the  madness.'  Thus, 
according  to  the  opinion  of  this  very  able  judge,  the  affection  of  the 
brain  which  causes  these  delusions  is  not  madness,  hut  the  want  of 
power  or  resolution  to  examine  them  is.  Nothing,  then,  but  an  ex- 
tent of  disease  which  destroys  at  once  all  possibility  of  reasoning, 
by  annihilating  or  entirely  changing  the  structure  of  the  organ,  can 
make  a  man  necessarily  mad." 

§  757.  "A  man  may  labor  under  a  mental  delusion,  and  yet  be 
a  responsible  agent ;  and,  if  sanity  or  insanity  be  in  a  great  many 
instances  the  consequences  of  a  greater  or  less  resolution  in  exert- 
ing the  power  of  reasoning  still  possessed,  the  same  kind  of  motives 
which  influence  a  man  in  common  life  are   still  available,  though 
they  may  require  to  be  somewhat  heightened.     It  is  on  this  princi- 
ple that  the  treatment  of  lunatics  has  been  generally  conducted. 
.  Fear,  one  of  the  lowest,  but  also  one  of  the  most  general  of  instinc- 
tive emotions,  has  been  called  in  to  balance  the  delusions  of  sense, 
and,  excepting  in  cases  where  the  structural  disease  is  so  extensive 
as  to  deprive  the  man  of  all  power  of  connecting  cause  and  effect, 
it  has  been  found  suflScient  to  curb  violence,  and  enforce  a  certain 
degree  of  peaceable  demeanor  towards  the  attendants.     And  in  this 
the  insane  person  differs  not  from  the  cultivated  man  who  is  left  at 
liberty,  whose  self-control  rarely  amounts  to  more  than  the  avoid- 
ing actions  which  would  have  unpleasant  consequences  to  himself. 
Suppose  an  irascible  man,  incensed  by  a  false   report,  Avhich,  how- 
ever, he  believes  to  be  true  ;  he  seeks  his  supposed  enemy,  and 
horsewhips  or  knocks  him  down  ;  he  does  not  assassinate,  because 
he  fears  for  his  own  life  if  he  does  ;  for  it  is  clear  that  no  feeling  of 
duty  has  held  his  hand,  or  he  would  not  have  transgressed  the  laws 
both  of  God  and  man  by  thus  revenging  himself.     The  madman  has 
the  false  report  from  his  own  senses ;  wherein  do  the  two  differ  ? 
Neither  has  employed  means  within  his  power  to   ascertain   the 

655 


§  758.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

truth,  and  both  are  aware  that  such  vengeance  is  forbidden.  I  can 
see  no  distinction  between  them,  save  that  the  delusion  of  sense  has, 
as  a  chemist  would  say,  decomposed  the  character,  and  shown  how 
much  of  the  individual's  previous  conduct  was  rational,  and  how 
much  the  result  of  mere  animal  instinct.  It  would  be  well  for  the 
world  if  the  soi-disant  sane  were  sometimes  to  ask  themselves  how 
far  their  sanity  would  bear  this  test,  and  endeavor  to  acquire  that 
rational  self-command  which  nothing  but  the  last  extremity  of  cere- 
bral disease  could  unseat.  We  do  not  descend  from  our  high  rank 
with  impunity :  and,  as,  when  the  matter  has  become  organized, 
if  the  process  of  change  occasioned  by  the  vital  force  be  impeded 
or  arrested,  the  plant  pines  away  and  perishes ;  as,  after  the 
organs  of  locomotion  have  been  superadded,  the  animal  debarred 
from  the  use  of  them  languishes  and  becomes  diseased ;  so  man,  if 
he  give  not  full  scope  to  the  intellectual  force,  becomes  subject  to 
evils  greater  than  animals  ever  know,  because  his  nature  is  of  a 
higher  order." 

§  758.  "Neither  do  severe  injuries  from  external  causes,  though, 
like  paralysis,  they  might  cause  a  loss  of  those  faculties  which  con- 
nect man  with  the  world  about  him,  necessarily  disconnect  him  with 
the  world  within,  so  as  to  place  him  beyond  his  own  command. 

"  A  case  has  been  communicated  to  me  illustrative  of  this.  A 
young  lad,  who  had  been  carefully  instructed  in  the  principles  of 
religion  and  virtue  by  the  clergyman  of  his  parish,  afterwards  went 
to  sea.  When  he  was  about  twenty-two,  he  unfortunately  fell  from 
the  mast  upon  his  head  on  the  deck,  and  the  injury  to  the  brain 
was  such  that  he  was  discharged  from  the  service  in  a  state  of  im- 
becility, and  sent  home  to  his  parish.  He  was  then  in  possession 
of  the  use  of  his  limbs  and  hearing ;  but  articulation  was  apparently 
difficult  to  him,  and  collected  thought,  which  should  enable  him  to 
speak  connectedly,  still  more  so  ;  his  sight,  too,  was  subject  to  a 
delusion  which  made  him  imagine  he  saw  gold  and  silver  coin  strewed 
about  on  the  ground  ;  which,  as  was  natural,  he  eagerly  endeavored 
to  pick  up.  He  was  now  visited  by  the  clergyman  who  had  been 
the  instructor  of  his  youth,  who  in  kind  terms  assured  him  he  was 
under  a  false  impression,  and  advised  him  to  give  no  heed  to  what 
he  imagined  he  saw.  The  poor  young  man  thanked  him,  and  pro- 
mised to  do  as  desired,  and  for  a  time  abstained  from  attempting  to 
pick  up  the  coin,  but  gradually  the  delusion  became  too  strong  for 
656 


TREATMENT    OF   INSANE    CRIMINALS.  [§  761. 

his  resolution,  and  he  recommenced.  Yet,  after  every  visit  from 
his  former  instructor,  he  again  controlled  himself  for  a  time  ;  and, 
if  he  did  not  come,  anxiously  sought  him  at  his  own  house.  He 
died  in  a  few  months,  but  during  the  whole  time  was  mild  and  sub- 
missive, seeming  perfectly  aware  that  his  mind  was  disordered  ; 
and,  like  a  child  who  distrusts  his  own  power,  seeking  to  throw 
himself  on  the  guidance  of  one  whose  kindness  he  remembered,  and 
whose  character  he  respected.  This  man  was  suffering  mental  de- 
rangement from  injury  of  the  parts,  but  was  not  insane  ;  for  the 
faculties  left  him  were  rationally  exercised. 

§  759.  "  Cases  of  this  kind  have  been  considered  by  some  as  a 
peculiar  type  of  insanity.  By  French  authors  it  is  entitled  mania 
sans  delire.  Dr.  Prichard  styles  it  instinctive  madness.  I  am 
inclined,  nevertheless,  to  refer  such  deranged  propensities  in  some 
instances  to  a  peculiar  morbid  state  of  sensation,  and  these  will 
come  under  the  head  we  are  now  considering,  consequently  the 
desire  is  not  irresistible,  though  strong,  for  we  see  that  it  has  been 
successfully  resisted  ;  in  others  I  should  refer  it  to  the  second  class, 
under  the  head  of '  Inefficiency  of  intellectual  force,'  and  then  it 
depends  on  the  resolution  of  the  person  so  affected  whether  the 
morbid  sensation  shall  be  meditated  on  and  indulged,  and  thus  ac- 
quire fresh  force,  or  whether,  by  exciting  other  sensations,  it  shall 
be  weakened  and  by  degrees  vanquished. 

§  760.  "  There  is  no  greater  error  than  to  suppose  that  thinking 
about  a  propensity  which  ought  not  to  be  gratified  will  conquer  it ; 
on  the  contrary,  every  hour  of  lonely  thought  gives  it  fresh  force  ; 
.  but  let  the  man  plunge  into  business  that  must  be  attended  to,  or 
even  a  lighter  occupation,  so  it  be  an  engrossing  one  ;  and  do  this 
resolutely,  however  irksome  it  may  at  first  appear,  and  the  very 
repose  thus  given  to  the  diseased  part,  if  there  be  disease,  by  throw- 
ing the  whole  stress  on  other  portions  of  the  brain,  will  assist  in 
effecting  a  cure. 

§  761.  "  When  a  man  has  reached  mature  age  without  making 
any  effort  to  render  the  brain  subservient  to  the  rational  will,  the 
fatigue  and  even  pain  consequent  on  the  endeavor  to  obtain  the 
mastery  over  it  is  such  that  few  have  resolution  to  undergo  it  volun- 
tarily. Thus  the  man  subsides  more  and  more  into  the  animal,  an 
is  at  last  guided  only  by  those  instinctive  emotions  which  belong  to 
the  vital  force  merely.  His  passions  assume  a  delirious  violence, 
VOL.  I.— 42  657 


§  761.]       MENTAL    UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

and  he  is  only  distinguished  from  the  brute  bj  the  greater  skill 
with  which  he  pursues  their  gratification.  There  is  no  disease  of 
brain,  but  it  has  been  left  unexercised  and  ungoverned  till  it  is  as 
unmanageable  as  a  limb  that  has  been  treated  in  the  same  way. 

"  Toes  have  been  used  for  writing  and  other  arts  which  are 
usually  performed  by  fingers  ;  they  are  capable,  therefore,  of  such 
use,  but  those  who  have  constantly  worn  shoes  cannot  direct  one 
toe  separately  from  the  rest,  as  they  can  the  fingers.  Yet  with 
much  trouble  this  power  of  directing  might  be  acquired.  It  is  thus 
(that  the  brain,  unaccustomed  to  direction  from  the  intellectual 
force,  rebels  against  it,  and,  if  this  latter  fails  to  assert  its  sway,  it 
may  justly  be  termed  inefficient.  In  a  man  thus  animalized,  the 
actions  differ  from  those  of  his  more  spiritualized  fellow  men,  who 
happily  are  more  numerous  ;  and,  when  they  find  no  such  motive 
as  tliey  would  consider  a  sufficient  one  for  his  conduct,  they  call 
him  mad,  by  way  of  accounting  for  it.  He  commits  a  crime,  and  a 
plea  of  insanity  is  set  up  as  a  shelter  from  punishment.  I  will  give 
an  instance.  It  is  recorded  by  the  elder  Pinel :  '  An  only  son, 
educated  by  a  silly  and  indulgent  mother,  was  accustomed  to  give 
way  to  all  his  passions  without  restraint.  As  he  grew  up,  the 
violence  of  his  temper  became  quite  uncontrollable,  and  he  was  con- 
stantly involved  in  quarrels  and  lawsuits.  If  an  animal  offended 
him,  he  instantly  killed  it ;  yet,  when  calm,  he  was  quite  reason- 
able, managed  his  large  estate  with  propriety,  and  was  even  known 
to  be  beneficent  to  the  poor  ;  but  one  day,  provoked  to  rage  by  a 
woman  who  abused  him,  he  threw  her  into  a  well.  On  his  trial,  so 
many  witnesses  deposed  to  the  violence  of  his  actions,  that  he  was 
condemned  to  imprisonment  in  a  mad-house.'  Yet  any  choleric 
man  who  does  in  his  rage  what  he  is  sorry  for  afterwards  is  as 
much  insane  as  this  man  was  ;  both  are  under  the  intiuence  of  the 
vital  force.  A  shock  to  some  nerve  of  sensation  stimulates  the 
sympathetic  system  ;  the  circulation  is  hurried,  and  the  blood, 
flowing  more  rapidly  through  the  brain,  gives  an  unusual  activity 
to  the  motor  nerves,  the  movements  are  sudden  and  violent,  the 
speech  hurried,  loud,  and  perhaps  incoherent ;  but  the  intellectual 
force  knows  the  source  of  these  symptoms,  and  can  curb  them  by 
resolute  silence  and  inaction  till  the  blood  again  flows  at  its  usual 
pace  ;  if  it  does  not,  the  man,  for  a  time,  is  in  a  state  of  mania,  but 
is  not  the  less  responsible  for  having  allowed  himself  to  be  so. 
658 


TREATMENT    OF   INSANE   CRIMINALS.  [§  761. 

"  Let  us  suppose  another  case  ;  the  thing  is  so  constantly  seen 
that  every  one  could  quote  examples  of  it.  A  man  unaccustomed 
to  self-control  becomes  occupied  by  one  thought ;  his  ambition  has 
been  disappointed,  perhaps,  or  a  lawsuit  has  plagued  him,  or  he  has 
been  much  employed  in  some  engrossing  pursuit.  Unable  to  regu- 
late his  thoughts  at  will,  he  finds  the  one  which  circumstances  have 
made  habitual  recur  uncalled  for.  An  effort  would  dismiss  it,  for 
every  one  who  has  studied  knows  that  he  has  had  to  dismiss  many 
an  intruding  thought,  and  with  some  effort,  too,  if  he  wished  to 
make  progress  in  what  he  has  undertaken ;  but  this  individual  has 
never  been  accustomed  to  make  any  such  effort,  and  he  knows  not 
how  to  free  himself  from  the  subject  which  thus  haunts  him.  If  it 
be  an  unpleasant  one,  he  is  wearied  and  worn  by  it ;  but  every  day 
that  it  is  not  driven  off,  it  assumes  a  greater  power,  for  the  part  of 
the  brain  thus  brought  into  action  is  now  by  habit  rendered  more 
fit  for  use  than  any  other  :  he  has  not  resolution  enough  to  free 
himself  from  his  tormentor  by  a  determined  application  to  something 
else  which  would  require  all  his  attention ;  he  sits  brooding  over  it, 
and,  when  life  has  thus  become  irksome,  he  strives  to  terminate  his 
discomfort  by  suicide  ;  yet  here  is  no  structural  disease,  and,  if  the 
man  could  be  persuaded  to  exert  himself,  he  might  be  sane.  I  will 
give  an  instance.  The  master  of  a  parish  workhouse,  about  thirty 
years  of  age,  was  subjected  frequently  to  groundless  suspicions  of 
peculation.  Being  naturally  a  taciturn,  low-spirited  man,  these 
false  accusations,  which  involved  his  character,  and  consequently 
the  maintenance  of  his  family,  preyed  upon  his  mind,  and  a  pro- 
found melancholy  was  the  result,  attended  by  the  usual  sympto- 
matic derangement  of  the  digestive  functions,  and  a  constant  appre- 
hension that  he  had  done  something  wrong,  he  did  not  know  what. 
No  assurance  on  the  part  of  those  who  knew  and  esteemed  him  had 
any  effect,  and  finally,  after  some  months  of  melancholy,  he  at- 
tempted to  destroy  himself,  fie  was  then  removed  to  St.  Luke's 
Hospital,  whence,  after  a  year  had  elapsed,  he  was  discharged  in- 
curable. He  was  now  placed  in  a  private  receptacle  of  the  insane, 
and  here  suffered  all  the  misery  which  at  that  time  pauper  lunatics 
were  subjected  to.  He  was  visited  at  this  place  by  a  benevolent 
man,  who,  seeing  his  state,  immediately  ordered  him  to  be  removed 
into  the  gentlemen's  apartments,  and  paid  for  his  maintenance  there. 
In  a  few  months  afterwards  he  was  visited  by  the  clergyman  of  his 

659 


§  762.]       MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

parish,  ayIio,  on  conversing  with  him,  considered  him  sane.  The 
man  begged  to  be  allowed  to  rejoin  his  wife  and  family,  and  the 
rector,  after  many  difficulties  and  some  threats  to  the  parish  autho- 
rities, succeeded  in  setting  him  free.  The  man  from  that  time  was 
able  to  maintain  his  family  by  his  trade  of  shoemaking,  for,  if  ever 
a  fit  of  melancholy  came  over  him,  a  threat  from  his  wife  that  he 
should  be  sent  back  to  the  mad-house  was  sufficient  to  engage  him 
to  make  an  effort  to  resume  his  cheerfulness  ;  and  he  remained  to 
old  age  a  sane  man.  Here  the  insanity  had  been  merely  {neffi- 
ciency  of  the  intellectual  force.  Placed  in  a  situation  of  compara- 
tive ease,  his  mind  had  become  calm  ;  the  wish  to  return  to  his  wife 
and  family,  and  the  hope  of  it,  kept  up  by  the  visits  of  benevolent 
friends,  did  the  rest ;  for,  be  it  observed,  during  the  whole  time  he 
never  felt  himself  abandoned.  The  poor  and  the  uneducated  are 
the  classes  which  most  usually  suffer  from  the  inefficiency  of  the 
intellectual  force ;  it  is  among  the  higher  ranks  usually  that  its 
misdirection  is  a  source  of  insanity.  Among  these,  more  distant 
objects  of  pursuit  keep  the  thoughts  longer  upon  the  stretch  towards 
one  point ;  the  organs  of  mechanical  memory  are  strengthened, 
nay,  even  strained  by  the  habit  of  learning  much  by  rote,  while  the 
constant  supply  of  learning  ready-made  leaves  no  necessity  for  the 
more  laborious  processes  of  reasoning  and  comparison.  Hence  we 
not  unfrequently  find  an  elegant  scholar,  who  can  readily  quote  the 
w^ords  and  opinions  of  others,  unable  himself  to  carry  on  a  course  of 
close  argument,  or  to  prove  the  truth  of  what  he  advances.  Who- 
ever has  moved  in  society  knows  that  it  is  rare  to  meet  with  any 
one  who  can  command  his  thoughts  in  conversation  frequently  to 
reject  all  that  is  not  relevant  to  the  subject,  so  as  to  keep  on  the 
chain  of  reasoning  unbroken.^ 

5)  762.  "  When  the  mind  is  thus  exercised  in  remembering  the 
opinions  of  others,  thus  unaccustomed  accurately  to  examine  its 
own,  what  wonder  is  it  if  it  should  become  prepossessed  with  some 
irrational  notion  which  cannot  be  removed  by  reasoning,  because 
the  individual  man  in  his  healthiest  state  has  never  chosen  so 
to  exercise  his  mind,  or  if,  when  a  delusion  of  sense  occurs,  he 
should  choose  rather  to  act  upon  it  as  truth,  than  to  examine  into 
the  grounds  he  has  for  believing  it  to  be  such  ?    It  is  a  melancholy 

«  Ibid. 
660 


TREATMENT    OF    INSANE   CRIMINALS.  [§  762. 

fact  that  a  great  number  of  mankind  are  in  this  state  as  regards 
the  faculties  most  requisite  to  self-control,  and  depend  far  more  on 
the  accident  of  good  health  than  the  exertion  of  their  own  intel- 
lectual power  for  their  sanity.  I  have  heard  of  more  than  one  in- 
stance of  Jiard  livers,  as  they  were  termed,  who  probably,  in 
consequence  of  a  slight  affection  of  the  brain  from  the  unnatural 
stimulus  of  wine  long  kept  up,  became  possessed  with  an  opinion 
that  they  were  slighted  by  one  or  more  of  their  friends,  and,  re- 
sisting all  reasoning  on  the  subject,  ended  by  destroying  them- 
selves. Yet  they  were  rational  on  other  matters  of  importance, 
and  therefore  it  is  to  be  concluded  that,  even  on  this  point,  they 
were  capable  of  being  rational  also,  had  they  chosen  to  make  the 
exertion.  It  is  recorded  of  Henri  of  Bourbon,  son  of  the  great 
Conde,  that  at  times  he  imagined  himself  transformed  into  a  dog, 
and  would  then  bark  violently.  Once  this  notion  seized  him  while 
in  the  king's  presence  ;  he  then  felt  it  needful  for  him  to  control 
himself,  and  he  did  so  ;  for,  though  he  turned  to  the  window,  and 
made  grimaces  as  if  barking,  he  made  no  noise.  Had  the  king's 
eye  been  upon  him,  it  is  probable  that  he  would  have  avoided  the 
grimaces  aiso."^ 

"  The  indulgence  of  violent  emotions,"  observes  Dr.  Connolly, 
"  is  singularly  detrimental  to  the  human  understanding,  and  it  is  to 
be  presumed  that  the  unmeasured  emotions  of  insanity  are  some- 
times perpetuated  in  consequence  of  the  disorder  of  brain  originally 
induced  by  their  violence.  A  man  is  at  first  only  irritable,  but 
gives  way  to  his  irritability.  Whatever  temporarily  interferes  with 
any  bodily  or  mental  function  reproduces  the  disposition  to  be 
irritated,  and  circumstances  are  never  wanting  to  act  upon  this 
disposition  till  it  becomes  a  disease.  The  state  of  the  brain,  or 
part  of  the  brain,  which  is  produced  whenever  the  feeling  of  irri- 
tation is  renewed,  is  more  easily  induced  at  each  renewal,  and 
concurs  with  the  moral  habit  to  bring  on  the  paroxysm  on  every 
slight  occasion — other  vehement  emotions  and  passions  aifect  the 
same  disorders  of  the  mind."^ 

'  Ibid.      See  supra,  §§  115,  188,  403.         2  ibid.      See  Dr.  Hack   Tuke's   In- 
fluence of  Mind  on  the  Body. 

661 


§  764.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 


II.    PREVENTION. 

§  763.  An  eminent  American  physician  tells  us,  that  "  no  argu- 
ment should  weigh,  for  a  moment,  with  a  court  of  justice, 
forpreven-  in  favor  of  liberating  such  an  individual  (one  subject  to 
homicidal  mania).  The  fact  that  life  has  been  taken 
should  overbalance  all  motives  to  send  such  person  into  society 
again,  while  the  delusions  and  estrangements  of  insanity  continue  ; 
and,  we  add,  not  until  months,  if  not  years,  of  peace  and  freedom 
from  excitement  should  have  confirmed  their  entire  release  from 
this  dangerous  form  of  disease."  "  We  recently  attended,"  says 
the  same  authority,  "  an  interesting  trial  on  a  subject  of  this  nature 
in  a  neighboring  county  in  this  state.  An  habitually  peaceful  and 
worthy  man  was  indicted  for  the  most  shocking  murder  of  his  wife 
with  an  axe,  and  a  horrible  attempt  upon  the  lives  of  his  children 
with  the  same  weapon.  The  facts  were  not  denied,  and  his  only 
defence  was  that  of  insanity.  He  was  acquitted,  principally  upon 
our  testimony  as  to  the  fact  of  his  being  insane  at  the  time  the 
murder  was  committed,  of  which  we  have  not  the  slightest  doubt ; 
but  our  astonishment  was  only  exceeded  by  our  alarm,  when  subse- 
quently informed  that  bail  had  been  admitted,  and  this  afflicted  b-ut 
truly  dangerous  man  Avas  permitted  to  go  at  large.  This  ought  not 
to  be  so.  Science  and  humanity  may  interpose  for  the  life  of  the 
homicide,  but  society  should  ever  be  protected  from  the  effects  of  his 
dreadful  disease.  The  lunatic  asylum  is  his  proper  place  ;  and  it 
should  be  duly  prepared  for  his  reception  and  detention,"^ 

§  764.  The  man  who,  in  an  insane  impulse,  kills  one  man,  is 
more  than  likely,  under  the  same  impulse,  to  kill  another.  And, 
indeed,  the  several  facts  of  moral  mania  imply  a  chronic  tendency 
to  the  particular  crime.  This  was  agreed  on  all  sides  in  Hadfield's 
case,  where  the  point  was  first  mooted.  "  For  his  own  sake,"  said 
Lord  Kenyon,  "  and  for  the  sake  of  society  at  large,  he  must  not 
be  discharged,  for  this  is  a  case  which  concerns  every  man  of  every 
station,  from  the  king  upon  the  throne  to  the  beggar  at  the  gate  ; 
people  of  both  sexes  and  all  ages  may,  in  an  unfortunate  frantic 
hour,  fall  a  sacrifice  to  this  man,  who  is  not  under  the  guidance  of 
sound  reason  ;  and  therefore  it  is  absolutely  necessary,  for  the  safety 

'  Dr.  TToodward,  cited  in  4  Journal  of  Psychological  Medicine,  p.  469. 

662 


TREATMEXT    OF    INSAXE    CRIMINALS.  [§  765. 

of  society,  that  he  should  be  properly  disposed  of,  all  mercy  and 
humanity  being  shown  to  the  unfortunate  creature  ;  but,  for  the 
sake  of  the  community,  he  must  somehow  or  other  be  taken  care  of, 
with  all  the  attention  and  all  the  relief  that  can  be  afforded  him." 
Hereupon  the  counsel  for  the  crown  and  the  counsel  for  the  defend- 
ant agreed  that  the  safety  of  the  community  required  that  he  should 
be  taken  care  of.  "  It  is  laid  down  in  some  books,"  said  the  former 
(Sir  John  Mitford,  afterwards  Lord  Redesdale),  "  that,  by  the  com- 
mon law,  the  judges  of  every  court  are  competent  to  direct  the  con- 
finement of  a  person  under  such  circumstances."  "  That  may  be, 
Mr.  Attorney-General,"  interposed  Ijord  Kenyon,  "but  at  present 
we  can  only  remand  him  to  the  confinement  he  came  from  ;  but 
means  will  be  used  to  confine  him  otherwise  in  a  manner  much  bet- 
ter adapted  to  his  situation."  It  was  then  suggested  by  Mr.  Gar- 
row  (afterwards  a  baron  of  the  exchequer)  that  "  it  would  be  for 
the  benefit  of  posterity  if  the  jury  would  state  in  their  verdict  the 
grounds  upon  which  they  gave  it,  viz.,  that  they  acquit  the  prisoner 
of  this  charge,  he  appearing  to  them  to  have  been  under  the  influ- 
ence of  insanity  at  the  time  the  act  was  committed.  There  would 
then,"  he  added,  "  be  a  legal  and  sufficient  reason  for  his  confine- 
ment."^ This  recommendation  was  adopted  by  the  jury,  who  re- 
turned a  verdict  in  these  terms.  Thus  originated  the  form  of  ver- 
dict now  commonly  returned  in  cases  of  this  description. 

III.     EXAMPLE. 

§  765.    The  recorded  cases  are  numerous  in  which  the  supposed 
irresponsibility  of  lunatics  has  led  to  the  perpetration  of 

...  rni  1  •      55  And  also 

crime  by  the  insane.  "  ihey  cannot  hang  him,  was  for  ex- 
whispered  about  in  the  York  Lunatic  Asylum,  when  the  ^™^  ^' 
firing  of  York  Minster  by  a  supposed  lunatic  was  under  considera- 
tion ;  "  he  is  one  of  ourselves."  And  one  of  the  most  dangerous 
convicts  in  the  Eastern  Penitentiary — one  laboring  under  homicidal 
mania  in  its  most  inveterate  shape — was  constantly  expressing  his 
disappointment  at  finding  that,  notwithstanding  his  acquittal  on  the 

'  Howell's  State  Trials,  vol.  xxvii,  1854,  pp.  16,  17.     See  an  article  in  35 
p.   1354   et.  seq.      Suggestions   for   the  Am.  Journ.  Ins.  p.  182,  on  Insane  Pa- 
future  Provision  of  Criinnal  Lunatics,  tients  and  their  Legal  Relations, 
by  W.   Charles  Hood,  M.D.,  London, 

663 


§  766.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

ground  of  insanity,  he  was  to  be  continued  in  prison.  He  had,  in 
fact,  supposed  himself  privileged  by  his  disease  to  commit  this  par- 
ticular crime. ^  And  even  taking  the  strongest  case — that  of  the 
man  who  is  possessed  by  a  homicidal  mania  which  equals  in  in- 
tensity the  passion  of  particular  classes  of  dogs  for  sheep's  blood — 
we  will  have  strong  ground  to  believe  that  such  an  instinct  can  be 
tutored.  Monomanias,  in  fact,  are  epidemics,  and  spread  precisely 
to  the  degree  in  which  they  are  invested  with  sentimental  celebrity. 
The  Leipsic  "  Maichen-Schander,"  who,  when  charged  with  grati- 
fying a  morbid  sexual  impulse  by  striking  lancets  in  the  arms  of 
such  young  girls  as  he  might  meet  in  a  crowded  street,  never 
exercised  this  propensity  except  when  it  was  likely  it  would  be 
undetected.  Shame  and  the  fear  of  punishment  restrained  him 
thus  far  ;  but  it  Avas  quite  otherwise  when  he  became  the  object  of 
a  sentimental  curiosity,  which  made  him  during  his  trial  and  im- 
prisonment the  object  of  conspicuous  attention.  The  monomania 
became  an  epidemic,  and  would  have  continued  so  had  not  an  igno- 
minious punishment  been  affixed.^ 

IV.    REFORM.^ 

And  so  for  §  766.  To  permit  a  monomaniac  to  go  at  large  will 
reform.         ^^  ^^  ^^^^  ^^^^  ^^  ^^^  disease,  as  well  as  to  supply  it  with 

victims — 

'  In  reference  to  this  case  I  have  the  to  know  what  redress  he  could  obtain 

following  note   from   Mr.   David   Paul  for  the  injuries  he  had  unjustly  sus- 

Brown,  who  was  counsel  for  the  person  tained.      In  conclusion,  he  stated  that 

mentioned  : —  if  the  law  did  not  furnish  redress,  he 

"  You  refer,  as  I  suppose,  to  the  would  be  his  own  avenger.  '  If,'  says 
case  of  Wiley  Williams,  who  shot  Dr.  he,  '  I  was  not  insane  when  I  was 
Kirkbride.  I  have  some  knowledge  placed  in  the  asylum,  those  who  put 
of  that  case,  tending  clearly  to  show,  or  those  who  kept  me  there  deserve 
in  your  language,  that  '  the  recorded  death  for  their  cruelty  ;  and  if  I  was 
cases  are  numerous  in  which  the  sup-  insane,  then,  if  I  kill  them,  my  in- 
posed  irresponsibility  of  lunatics  has  sanity  will  exempt  me  from  the  conse- 
led  to  the  perpetration  of  crime  by  the  quences  of  crime.'  " 
insane.'-  ^  See  articles  by  Dr.  J.  G.  Fisher, 

"Shortly  before  Williams  shot  Dr.  25  Am.  Journ.  Ins.   241,  and  by  Dr. 

Kirkbride,  I  received  a  letter  from  the  D.  S.  S.  Conant,  vol.  2,   Trans.  N.  Y. 

lunatic,    in  which   he    complained    of  .  Ac.  of  Med.  p.  269. 

his  sufferings  during  several  months  of  ^  Qn  this  topic  the  reader  is  referred 

confinement  at  the  asylum,  expressed  to  the  excellent   and  careful  series  of 

his  delight  at  his  escape,  and  desired  Reports   of  the    Eastern   Penitentiary 

664 


TREATMENT    OF   INSANE    CRIMINALS.  [§  767. 

"  Mobilitate  viget, 
Viresque  acquiret  eundo." 

And  to  nothing  does  this  apply  with  greater  force  than  that  exag- 
gerated state  of  the  moral  system  which  has  just  been  discussed. 
If  the  indulgence  in  passion,  even  in  a  healthy  mind,  tends,  as  has 
been  just  shown,  to  derangement,  it  will  readily  be  seen  that 
no  recovery  can  be  effected  while  the  patient  is  permitted  to  run 
at  large,  exposed  to  all  the  irritating  influences  of  unguarded 
society,  and  encouraged  by  his  very  irresponsibility  in  a  career  of 
lawless  vice. 

§  767.  Dr.  Mayo  thus  well  illustrates  the  awkward  position  of 
insane  criminals  under  the  present  administration  of  the  law  :  "  It 
must  be  confessed  that  the  conditional  responsibility  which  the  law, 
and,  as  I  think,  the  reason,  of  the  case  attributes  to  the  insane  is 
not  easily  applicable  in  practice,  either  under  lucid  intervals,  or 
under  such  other  phases  of  the  insane  state  as  might  seem  to  justify 
it.  The  law  will  remain  a  dead  letter,  or  will  be  continually  ignored 
by  the  sympathies  of  judges,  juries,  and,  I  may  add,  of  medical 
witnesses,  unless  some  practical  distinction  can  be  arranged  Avhich 
may  enable  the  responsible  insane  to  undergo  some  lower  degree  of 
punishment  than  that  inflicted  on  similar  delinquents  being  of  sound 
mind.  The  position  of  many  such  persons  under  capital  charges  is 
at  present  anomalous.  They  are  acquitted  in  defiance  of  the  law, 
as  laid  down  by  the  judges  respecting  M'Naughten's  case,  because 
the  punishment  at  present  appertaining  to  the  offence  would  be  too 
severe  ;  and  then,  instead  of  being  consigned  to  confinement  in  a 
jail,  as  a  secondary  punishment,  they  are  consigned  to  it  in  an 
asylum  as  a  place  simply  of  detention.  This  becomes  a  scene  of 
severe  virtual  punishment  to  some  of  them,  of  gratification  to  vanity 
and  idleness  to  others ;  those,  meanwhile,  to  whom  it  is  a  griev- 
ance, as  they  do  not  regard  it  in  the  light  of  a  punishment,  derive 
from  it  none  of  the  preventive  effects  of  punishment  or  future  con- 
duct, while  the  public,  for  the  same  reason,  find  it  equally  unpro- 
ductive of  good,  as  an  example  to  persons  of  actually  diseased 

of  Pennsylvania,,  published  in  Phila-  Physicians  and  Moral  Instructors.    See 

delphia,  to  which  it  is   impossible  to  also  The  State  of  Prisons,  etc.,  by  E. 

make  fuller  references.    Attention  may  C.  Wines,  LL.D.,  Cambridge,  1880. 
be  specially  called  to  the  reports  of  the 

665 


§  769.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

mind,  or  to  that  large  class  of  other  persons  who  are  drifting  into 
disease  under  uncontroRed  eccentricity."^ 

§  768.  It  is  impossible  to  carry  out  the  proper  disciplinary  and 
remedial  measures  in  a  penitentiary  common  to  the  sane  and  insane. 
"  I  am  satisfied  of  the  fact,"  says  Dr.  Hood,  "  that  criminal  lunatics 
are  more  difficult  to  manage  than  other  lunatics ;  there  is  more 
irritability  of  temper  and  general  restlessness  about  them  ;  they  are 
cognizant  of  the  offences  they  have  committed,  and,  being  under  the 
impression  that  they  will  never  recover  their  liberty,  they  are  less 
disposed  to  be  contented  or  happy.  They  are  also  conscious  that 
they  are  separated  into  and  form  a  distinct  class  of  patients,  and 
this  very  circumstance  establishes  a  species  of  fraternity  among 
them  ;  for  they  are  in  constant  communication  with  each  other,  and 
their  curiosity  is  naturally  excited  to  ascertain  the  circumstances 
connected  with  every  new  arrival.  They  thus  soon  become  ac- 
quainted with  each  other's  history,  which  is  often  the  cause  of  much 
quarrelling  and  mutual  recrimination  ;  the  better  class  of  patients 
are  unhappy  at  being  associated  with  the  inferior  order — criminals 
whose  manners  and  language  are  habitually  of  the  most  revolting 
description.  Hence  I  conclude  that  the  fundamental  principle  upon 
which  we  should  proceed,  in  providing  for  the  safe  custody,  main- 
tenance, and  medical  care  of  our  criminal  lunatics,  should  be  that 
of  establishing  a  certain  classification  among  them,  founded  upon 
the  degrees  or  nature  of  the  crimes  which  they  may  have  committed. 
This  principle  conceded,  we  have  then  to  consider  the  expediency  or 
inexpediency  of  organizing  a  state  lunatic  asylum  for  their  common 
reception  ;  the  possibility  or  impossibility  of  each  county  providing 
adequate  accommodation  in  existing  asylums  for  its  own  criminal 
lunatics ;  and  whether  arrangements  might  not  be  made  in  prisons, 
and  houses  of  correction,  for  the  medical  treatment  of  such  prisoners 
as  may,  while  undergoing  imprisonment  or  penal  servitude,  become 
insane. "2 

§  769.  On  the  other  hand,  the  confinement  of  an  insane  criminal 
in  an  ordinary  lunatic  asylum  is  beset  with  still  greater  difficulties. 
"  It  is,"  says  Dr.  Hood,  "  not  only  annoying  to  other  patients,  but 

'  Mayo  on  Medical  Testimony  in  sion  of  Criminal  Lunatics,  by  W. 
Lunacy,  pp.  50-52.  Cliarles    Hood,    M.D.      London,   1854, 

2  Suggestions   for  the  future  provi-    pp.  28,  29. 

66Q 


TREATMENT    OF   INSANE   CRIMINALS. 


[§  770. 


greatly  disturbs  the  ordinary  discipline  of  the  establishment ;  for,  be 
it  observed,  lunatics,  whether  criminal  or  non-criminal,  are  capable 
of  some  degree  of  reasoning  ;  and  their  conscious  incapacity  of 
enjoying  this  faculty  to  its  full  extent  often  recoils  painfully  upon 
their  feelings,  and  becomes,  in  itself,  a  source  of  irritation.  In 
providing,  indeed,  for  the  safe  custody  and  the  management  of  the 
insane  of  all  classes,  we  should  proceed  upon  the  same  principles  as 
if  we  were  legislating  for  professedly  sane  persons  ;  because  the 
mind  is  never  totally  eclipsed,  there  is  always  some  lingering  ray 
of  light  which  the  intact  reflection  may  seize-  upon  with  instinctive 
truthfulness."^ 


V.    WHY  OUR  PRESENT  SYSTEM  SHOULD  BE  REMODELLED. 

§  770.  If  the  views  taken  in  the  preceding  sections  be  sound ; 
if,  in  the  first  place,  there  are  inherent  difficulties  in  the  way  of 
making  insanity  a  ground  of  defence  on  the  trial  of  a  man,  who,  on 
this  hypothesis,  is  psychologically  incapable  of  either  tendering  or 
preparing  any  such  issue  ;^  if,  in  the  second  place,  we  must  recog- 


>  Ibid.  pp.  27,  28.  See  The  State  of 
Prisons,  etc.,  by  E.  C.  Wines,  LL.D., 
pp.  63,  172,  335.  As  to  insanity  ori- 
ginating in  the  discipline,  p.  447. 

2  The  absurdity  of  our  present  prac- 
tice, in  making  insanity  a  personal 
defence,  to  be  taken  or  rejected  by  the 
alleged  lunatic  in  the  exercise  of  a 
volition  which  the  very  nature  of  the 
defence  supposes  him  incapable  of  ex- 
ercising, is  fully  exhibited  in  State  v. 
Patten,  10  La.  Ann.  299  (1855,  see  R. 
V.  Pearce,  7  C.  &  P.  6tJ7). 

"  The  sanity  or  insanity  of  the  pris- 
oner, said  the  court,  is  a  matter  of  fact ; 
the  admissibility  of  evidence  to  estab- 
lish his  insanity,  under  the  circum- 
stances detailed  in  the  bill  of  excep- 
tions, is  a  matter  of  law,  and  the  only 
matter  which  the  constitution  autho- 
rizes this  tribunal  to  decide. 

"  The  case  is  so  extraordinary  in  its 
circumstances  that  we  are  left  without 
the  aid  of  precedents. 

"  In  support  of  the  ruling  of  the  dis- 


trict judge,  it  has  been  urged  that 
every  man  is  presumed  to  be  sane  until 
the  contrary  appears,  and  that  a  person 
on  trial  for  an  alleged  offence  has  a 
constitutional  right  to  discharge  his 
counsel  at  any  moment,  to  repudiate 
their  action  on  the  spot,  and  to  be  heard 
by  himself;  hence  the  inference  is  de- 
duced that  the  judge  could  not  have 
admitted  the  evidence,  against  the  pro- 
test of  the  prisoner,  without  reversing 
the  ordinary  presumption,  and  pre- 
suming insanity. 

"In  criminal  trials,  it  is  important 
to  keep  ever  in  mind  the  distinction 
between  law  and  fact,  between  the 
functions  of  a  judge  and  those  of  a 
ji^iry. 

"  It  was  for  the  jury,  and  the  jury 
alone,  to  determine  wliether  there  was 
insanity  or  not,  after  hearing  the  evi- 
dence and  the  instructions  of  the  court 
as  to  the  principles  of  law  applicable 
to  the  case. 

"  By  receiving  the  proffered  evidence 

667 


§  770.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

nize  sanity  and  insanity  as  pressing  into  each  other  gradually  at  a 
line  that  cannot  be  judicially  defined,  each  being  capable  of  various 


for  what  it  might  be  worth,  the  judge 
would  have  decided  no  question  of  fact ; 
he  would  merely  have  told  the  jury, 
'  the  law  permits  you  to  hear  and  weigh 
this  evidence  ;  whether  it  proves  any- 
thing it  is  for  you  to  say.' 

"By  rejecting  it,  he  deprived  the 
jury  of  some  of  the  means  of  arriving 
at  an  enlightened  conclusion  upon  a 
vital  point  peculiarly  within  their 
province,  and  in  effect  decided  himself, 
and  without  the  aid  of  all  the  evidence 
within  his  reach,  that  the  prisoner 
was  sane. 

■'  It  is  idle  to  say  that  the  legal  pre- 
sumption, and  the  prisoner's  own  de- 
clarations, appearance,  and  conduct  on 
the  trial,  established  his  sanity  to  the 
satisfaction  of  both  judge  and  jury; 
for  presumption  may  be  overthrown, 
declarations  may  be  unfounded,  and 
conduct  and  appearances  may  be  de- 
ceitful ;  and  the  prisoner's  counsel, 
sworn  officers  of  the  court,  with  their 
professional  character  at  stake  upon 
the  loyalty  of  their  conduct,  alleged 
that  they  stood  there  prepared  to  prove, 
by  what  they  deemed  clear  and  irresis- 
tible testimony,  that  the  accused  was 
insane  at  the  time  of  the  homicide, 
long  before,  and  ever  since ;  so  that 
the  sole  inquiry  now  is,  not  whether 
they  or  the  court  were  right  as  to  the 
fact  of  sanity,  upon  which  we  can  have 
no  opinion,  but  whether  they  should 
have  been  allowed  to  put  the  testi- 
mony they  had  at  hand  before  the 
jury,  to  be  weighed  with  the  counter 
evidence. 

"If  the  prisoner  was  insane  at  the 
time  of  the  trial,  as  counsel  offered  to 
prove,  he  was  incompetent  to  conduct 
his  own  defence  unaided,  to  discharge 
his  counsel,  or  to  waive  a  right. 

6tj8 


"Upon  the  supposition  that  the 
counsel  were  mistaken  in  regard  to  the 
weight  of  the  evidence  they  wished  to 
offer,  as  they  may  have  been,  still  its 
introduction  could  do  the  prisoner  no 
harm,  nor  could  it  estop  him  from  any 
other  defence  he  might  choose  to  make 
on  his  own  account ;  neither  could  it 
prejudice  the  state,  for  it  is  to  be  pre- 
sumed that  the  jury  would  have  given 
the  testimony  its  proper  weight ;  if,  on 
the  other  hand,  the  counsel  were  not 
mistaken  as  to  the  legal  effect  of  this 
evidence,  the  consequences  of  its  rejec- 
tion would  be  deplorable  indeed. 

"The  overruling  necessity  of  the 
case  seems  to  demand  that,  whenever  a 
previous  soundness  of  mind  and  con- 
sequent accountability  for  his  acts  are 
in  question,  the  rule  that  he  may  con- 
trol or  discharge  his  counsel,  at  plea- 
sure, should  be  so  far  relaxed  as  to 
permit  them  to  offer  evidence  on  those 
points,  even  against  his  will.  Consid- 
ering, therefore,  that  it  would  be  more 
in  accordance  with  sound  legal  princi- 
ples, and  with  the  humane  spirit  which 
pervades  even  the  criminal  law,  to 
allow  the  rejected  testimony  to  go  be- 
fore the  jury,  the  cause  must  be  re- 
manded for  that  purpose. 

"  It  was  said  in  argument,  on  behalf 
of  the  state,  that  the  alleged  insanity 
was,  at  most,  but  a  monomania  upon 
another  topic,  which  could  not  exempt 
the  prisoner  from  responsibility  for  the 
homicide. 

"  The  judge  will  instruct  the  jury  in 
regard  to  the  principles  of  law  which 
govern  this  subject,  when  all  the  facts 
shall  have  been  heard.  At  present, 
the  discussion  is  premature. 

"It  is  therefore  ordered,  adjudged, 
and  decreed  that  the  judgment  of  the 


TREATMENT    OF   INSANE   CRIMINALS. 


[§  770. 


degrees  ;^  if,  in  the  third  place,  it  be  right  that  the  present  system 
of  confinement  of  insane  criminals  be  remodelled, — then  it  will  be- 
come necessary  for  those  to  whom  the  work  of  legislation  is  com- 
mitted to  amend  the  law  so  as  to  require  the  question  of  insanity  to 
be  determined  by  a  competent  tribunal  after  a  conviction  of  the 
fact  of  guilt.  For  the  following  undeniable  evils  result  from  the 
present  system  :  — 

a.  A  tribunal  of  at  least  but  secondary  competency  is  charged 
with  the  determination  of  the  most  difficult  and  yet  most  momentous 
question  to  which  human  observation  can  be  applied.^ 

h.  A  subject  is  introduced  into  the  question  of  guilt  or  innocence, 
as  to  which  no  fixed  judicial  rules  can  be  laid  down,  and  which 
really  concerns  only  the  character  and  the  extent  of  punishment. 

c.  We  confound  by  this  process  the  sane  convict ;  the  malignant 
insane  convict,  who  requires  discipline  and  is  in  some  degree  morally 
responsible  ;  the  innocent  insane  convict  ;^  and  the  lunatic,  who  is 
in  confinement  but  is   not  charged  with  crime  :    for  all  of  whom 


court  below  be  reversed,  the  verdict  of 
the  jury  set  aside,  and  the  cause  re- 
mauded  for  a  new  trial  according  to 
law." 

'  See  supra,  §§  40—66. 

2  Dr.  Hood  justly  remarks  :  "All 
human  tribunals  are  fallible,  and  how, 
when  this  plea  of  insanity  is  raised, 
can  we  unvail  the  mind  of  the  accused, 
and  determine  where  responsibility 
ends  and  irresponsibility  begins  ?  We 
may  appreciate  outward  and  visible 
signs,  but  we  have  no  mentometer  (if  I 
may  be  allowed  to  coin  a  word)  which 
will  indicate  the  thoughts  that  may  be 
passing  through  the  mind.  In  medi- 
cal jurisprudence  the  diagnosis  be 
tween  sanity  and  insanity  is,  in  many 
cases,  infinitely  difficult ;  and  it  is 
npon  this  account  that  specialists  in 
this  branch  of  our  profession  so  often 
come  into  collision  with  members  of 
the  bar,  and  draw  down  upon  them- 
selves occasionally  animadversions 
from  the  judges  on  the  bench.  There 
would  be  no  diflference  of  opinion  be- 


tween the  two  learned  professions  if 
we  could  arrive  at  any  fixed  princi- 
ples by  which  we  could  explain  the 
silent  operations  of  the  mind  ;  but  this, 
so  far  as  insanity  is  concerned,  is  as 
impossible  in  law  as  it  is  in  medicine. 
We  may  adjudicate  upon  the  overt  act, 
but  the  motive  whicli  dictated  it  will 
very  often  elude  the  most  searching 
examination.  But  this  happens  con- 
tinually in  sane  as  well  as  in  insane 
life." — Suggestions  for  the  future  Pro- 
vision of  Criminal  Lunatics,  by  W.  C. 
Hood,  M.D.     London, 1854. 

And  we  may  add  to  this  the  testi- 
mony of  a  great  poet  on  a  kindred 
point : — 

"May  it  please  your   Excellency,  your 
thief  looks 
Exactly  like  the  rest,  or  rather  better ; 
'Tis  onlj"  at  the  bar  or  in  the  duHgeon 
That  wise  men  know  your  felon  by  his 
features." 

'^  See  as  to  distinction  between  these, 
ante,  §§  185-200. 

669 


§  770.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCnOLOGICALLT. 

there  is  in  some  jurisdictions  but  oyie  common  method  of  discipline 
provided,  viz.,  that  of  the  penitentiary  ;  in  others,  but  two,  that  of 
the  penitentiary  and  of  the  ordinary  lunatic  asylum.  The  result 
of  this  is  acquittals  in  some  cases  where  there  should  be  convictions, 
convictions  in  other  cases  where  there  should  be  acquittals,  and  in 
almost  all  cases  an  erroneous  system  of  punishment. 

The  remedy  for  these  difficulties  is  one  to  which  we  must  come 
sooner  or  later,  and  for  which  the  common  law  has  been  from  the 
beginning  ahvays  striving,  and  yet  losing  from  almost  its  very  grasp. 
It  is  to  confine  the  inquiry  before  the  court  and  jury  to  the  mere 
factum  of  the  commission  of  the  offence  ;  reserving  the  question  of 
treatment  to  be  determined  by  a  special  commission  of  experts,  to 
be  appointed  for  the  purpose  of  examining  convicts  alleged  to  be 
insane.     The  proposition  to  be  put  by  the  court  to  the  jury,  under 
such  circumstances,  is  not,  "  Was  the  defendant  capable  of  judging 
between  right  and  wrong?"  a  proposition  which  no  jury  can  deter- 
mine, but,  "  Did  he,"  as  a  matter  of  fact,  "  commit  the  specific  act 
charged?"     For  whether  he  committed  it  as  sane  or  insane,  the 
result  is,  if  the  offence  in  point  of  law  is  indictable,  that  the  safety 
of  society  requires  that  he  should  be  placed  in  seclusion  for  such  a 
period  as  will  promote  the  joint  ends  of  personal  reformation  and 
the  preservation  of  the  Avell-being  of  the  community  at  large.     If 
he  be  guilty  without  the  palliation  of  mental  infirmity,  certainly  the 
severest  penal  code — with  the  single  qualification  of  cases  of  murder 
in  the  first  degree — can  ask  nothing   more  than  this.     If,  on  the 
other  hand,  he  was  at  the  time  laboring  under  mental  derangement, 
in  no  other  way  can  the  extent  of  his  responsibility  be  accurately 
determined,  and  the  proper  degree  of  discipline  adjusted.     For  this 
great  question  of  sanity  or  insanity  can  really  be  only  determined 
by  those  to  whose  daily  and  hourly  care  the  convict  is  committed, 
and  who  have  thus  full  opportunity  of  inquiring  into  his  antecedent 
as  well  as  his  present  condition.     "  Thus,"  to  adopt  the  language 
of  an  intelligent  commentator,^  "  except   as   regards   the  curative 
course  to  be  adopted,  on  our  view  of  the  case,  the  subtle  line  of  dis- 
tinction which  there  have  been  so  many  abortive  attempts  to  draw, 
between  criminal  and  non-criminal  lunatics,  is  of  no  practical  impor- 
tance, and  the  unavailing  search,  unless  as  a  matter  of  metaphysical 

'  21  London  Law  Review,  364. 

670 


TREATMENT    OF   INSANE    CRIMINALS. 


[§  770. 


speculation,  may  be  abandoned  as  unnecessary.  In  either  case, 
the  person  concerned,  whether  called  a  lunatic,  a  criminal  lunatic, 
or  an  ordinary  criminal,  should  be  so  placed  as  to  put  it  out  of  his 
power  to  inflict  further  injury,  and  to  aff"ord  the  most  likely  means 
for  his  cure."  And  thus,  also,  not  only  will  the  sanctions  of  human 
life  and  property  be  protected  from  the  recurrence  of  those  monstrous 
acquittals,  by  which,  under  the  plea  of  insanity,  the  most  dangerous 
criminals  are  suffered  to  run  at  large,  but  the  interests  of  humanity 
will  be  subserved  by  a  proper  discipline,  as  well  as  a  just  classifica- 
tion, of  those  whose  accountability  is  diminished  or  destroyed.^ 


'  See  supra,  §  200.  "  I  may  be  asked 
what  principle  I  would  propound  for 
the  guidance  of  courts  of  law  in  these 
cases.  I  caimot  but  repeat  what  I 
have  already  declared  to  be  my  con- 
viction, that,  in  every  criminal  case  where 
the  question  of  responsihility  arises  in  the 
course  of  judicial  inquiry,  if  it  be  possi- 
ble TO  ESTABLISH  ANY  DEGREE  OF  POSI- 
TIVE INSANITY,  IT  SHOULD  ALWAYS  BE 
VIEWED  AS  A  VALID  PLEA  FOR  A  CON- 
SIDERABLE MITIGATION  OF  PUNISHMENT, 
AND  AS  PRIMA  FACIE  EVIDENCE  IN  FAVOR 
OP  THE  PRISONER  ;  AND  IN  NO  CASE 
WHERE  INSANITY  CLEARLY  EXISTS  (aVITH- 
OUT  REGARD  TO  ITS  NATURE  AND  AMOUNT) 
OUGHT  THE  EXTREME  PENALTY  OF  THE 
LAW  TO  BE  INFLICTED. 

"  What,  I  may  be  asked,  is  my  test 
of  insanity  ?  I  have  none.  I  know  of 
no  unerring,  infallible,  and  safe  rule 
or  standard,  applicable  to  all  ca&es. 
The  only  logical  and  philosophic 
mode  of  procedure  in  doubtful  cases  of 
mental  alienation,  is  to  compare  the 
mind  of  the  lunatic  at  the  period  of  his 
suspected  insanity  with  its  prior  natu- 
ral and  healthy  condition  :  in  other 
words,  to  consider  the  intellect  in  re- 
lation to  itself,  and  to  no  artificial  d, 
priori  test.  Each  individual  case  must 
be  viewed  in  its  own  relations.  It  is 
clear  that  such  is  the  opinion  of  tlie 
judges,  notwithstanding  they  main- 
tained  as   a  test  of   responsibility   a 


knowledge  of  right  and  wrong.  Can 
any  other  conclusion  be  drawn  from  the 
language  used  by  the  judges  when  pro- 
pounding in  the  house  of  lords  their 
view  of  insanity  in  connection  with 
crime  ?  '  The  facts,'  they  say,  '  of  each 
particular  case  mustof  necessity  present 
themselves  with  endless  variety  and  ivith 
every  shade  of  difference  in  each  case ;  and, 
as  it  is  their  duty  to  declare  the  law 
upon  each  particular  case,  uj)on  facts 
proved  before  them,  and  after  hearing 
arguments  of  counsel  thereon,  they 
deem  it  at  once  impracticable,  and  at  the 
same  time  dangerous  to  the  administration 
of  justice  if  it  were  practicable,  to  attempt 
tonmke  minute  applications  of  the  principles 
involved  in  the  answers  given  by  them 
to  the  questions  proposed.'  This  is  a 
safe,  judicious,  and  philosophic  mode 
of  investigating  these  painful  cases  ; 
and,  if  strictly  adhered  to,  the  ends  of 
justice  would  be  secured,  and  the  re- 
quirements of  science  satisfied. 

"  In  considering  the  question  of 
modified  responsibility  in  connection 
with  these  cases  of  alleged  insanity, 
we  should  never  lose  sight  of  the  fact, 
that,  even  if  a  lunatic  be  fully  exon- 
erated and  acquitted  in  consequence  of 
his  state  of  mind,  he  is  doomed  to  linger 
out  the  remainder  of  his  miserable  ex- 
istence in  the  criminal  wards  of  a  i^ub- 
lic  lunatic  asylum. 

"To  talk  of  a  person  escaping  the 

671 


§  770.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 


extreme  penalty  of  the  law  on  the  plea 
of  insanity,  as  one  being  subjected  to 
no  kind  or  degree  of  punishment,  is  a 
perfect  mockery  of  truth  and  perver- 
sion of  language.  Suffer  no  punish- 
ment !  He  is  exposed  to  the  severest 
pain  and  torture  of  body  and  mind  that 
can  be  inflicted  upon  a  human  creature 
short  of  being  publicly  strangled  upon 
the  gallows.  If  the  fact  be  doubted, 
let  a  visit  be  paid  to  that  dreadful  den 
at  Bethlehem  Hospital — 

'■Regions  of  sorrow,  doleful  shades,  ivhere 

peace 
And  rest  can  never  dwell,  hope  never  come, 
That  comes  to  all ' — 

where  the  criminal  portion  of  the  es- 
tablishment are  confined  like  wild 
beasts  in  an  iron  cage  ! 

"  Much  has  been  said  of  the  deterring 
effects  of  capital-punishment.  I  do  not 
doubt  its  having  some  effect  in  pre- 
venting crime ;  but  I  incline  to  the 
opinion  that  if  the  real  condition  of 
those  confined  as  criminal  lunatics  was 
well  understood  (assuming  the  insane 
to  be  amenable  to  the  fear  of  punish- 
ment), it  would  act  more  potently  as  a 
deterring  agent  than  any  apprehension 
they  might  feel  at  the  prospect  of  a 
public  execution. 

"  It  was  the  opinion  of  Beccaria  that 
the  impression  made  by  any  punish- 
ment was  in  proportion  to  its  duration, 
and  not  to  its  intensity.  '  Oiir  sensi- 
bility,' he  observes,  '  is  more  readily 
and  permanently  affected  by  slight  but 
reiterated  attacks  than  by  a  violent 
but  transient  affection.  For  this  reason, 
the  putting  of  an  offender  to  death 
forms  a  less  effectual  check  to  the  com- 
mission of  crimes  than  the  spectacle  of 
a  man  kept  in  a  state  of  confinement, 
and  employed  in  hard  labor,  to  make 
some  reparation,  by  his  exertions,  for 
the  injuries  he  has  inflicted  on  society.' 

"In  judicially  estimating  cases  of 
crime  connected  with  alleged  cond  itions 

672 


of  insanity,  it  is  our  duty  always  to 
bear  in  mind,  that,  if  an  error  be  com- 
mitted on  the  side  of  undue  severity, 
it  never  can  be  remedied. 

"  No  reparation  can  be  made  for  so 
great  an  injury — for  so  serious  an  act 
of  injustice.  If  a  criminal  should  be 
unjustly  acquitted  on  the  plea  of  in- 
sanity (and  I  admit  such  cases  have 
occurred),  a  degree  of  injury  is  un- 
doubtedly done  to  society,  and  the  con- 
fidence in  the  equitable  administration 
of  justice  is,  to  an  extent,  shaken.  But 
can  a  judicial  mistake  like  this  for  one 
moment  be  compared  with  the  serious 
and  fatal  error  of  consigning  an  irre- 
sponsible creature  to  a  cruel  and  igno- 
minious death  ? 

"It  is  well  observed  by  Bentham 
that  '  the  minimum  of  punishment  is 
more  clearly  marked  than  its  maxi- 
mum. What  is  too  little  is  more  clearly 
observed  than  what  is  too  much.  What 
is  not  sufiScient  is  easily  seen  ;  but  it 
is  not  possible  so  exactly  to  distinguish 
an  excess.  An  approximation  only  can 
be  obtained.  The  irregularities  in  the 
force  of  temptation  compel  the  legisla- 
tor to  increase  his  punishments  until 
they  are  not  merely  suflicient  to  re- 
strain the  ordinary  desires  of  men,  but 
also  the  violence  of  their  desires  when 
unusually  excited.  The  greatest  dan- 
ger lies  in  an  error  on  the  minimum 
side,  because  in  this  case  the  punish- 
ment is  inefiicacious  ;  but  this  error  is 
least  likely  to  occur,  a  slight  degi-ee  of 
attention  sufficing  for  its  escape  ;  and, 
when  it  does  exist,  it  is,  at  the  same 
time,  clear  and  manifest,  and  easy  to 
be  remedied.  An  error  on  the  maxi- 
mum side,  on  the  contrary,  is  that  to 
which  legislators  and  men  in  general 
are  naturally  inclined  ;  antipathy,  or 
a  want  of  compassion  for  individuals 
who  are  represented  as  dangerous  and 
vile,  pushes  them  onward  to  an  undue 
severity.  It  is  on  this  side,  therefore, 
that  we  should  take  the  most  precau- 


TREATMENT    OP   INSANE   CRIMINALS. 


[§  770. 


tions,  as  on  this  side  there  has  "been 
shown  the  greatest  disposition  to  err," 
—  Winslow^s  Essay  on  Legal  Responsi- 
bility/, 15  Am.  Journ.  of  Insanity,  p.  191. 

See  also  an  interesting  essay  on 
Criminal  Insane,  Insane  Transgress- 
ors, and  Insane  Convicts,  by  Edward 
Jarvis,  M.D.,  of  Dorchester,  Mass.,  in 
the  13tli  volume  of  the  Am.  Joiirn.  of 
Insanity,  p.  195.  See  also  Chapters 
on  Prisons  and  Prisoners  and  the  Pre- 
vention of  Crime,  Jos.  Kingsmill,  M.A. 
Lond. 1854. 

A  committee  of  the  New  York  Senate, 
consisting  of  Messrs.  Woodin,  Fowler, 
and  Pitts,  made  a  special  report  upon 
the  condition  and  treatment  of  the  in- 
sane of  the  State,  which  is  printed 
in  the  New  York  Herald  of  March  7, 
1882. 

"  The  committee  visited  the  luna- 
tic asylums  of  the  State,  and  examined 
as  witnesses  superintendents  of  asy- 
lums, attendants,  trustees,  managers, 
medical  experts  not  connected  with 
asylums,  patients  confined  therein,  the 
State  Commissioner  in  Lunacy,  and 
whoever  they  thought  might  be  able 
to  throw  light  on  the  matters  under 
investigation.  They  reach  conclusions 
by  saying  that  insanity  is  a  physical 
disease — one  of  the  nervous  system 
not  apart  from  the  human  nature,  but 
.  to  be  studied  and  treated  as  a  part  of 
a  large  family  of  nervous  diseases.  It 
is  declared  to  be  most  marked  and 
prevalent  the  higher  the  grade  of 
civilization,  but  that  its  increase  is 
out  of  all  proportion  to  the  increase 
of  population  in  highly  civilized  coun- 
tries. In  Great  Britain  it  has  been 
estimated  by  one  of  the  presidents  of 
the  British  Psychological  Association 
that  if  insanity  were  to  increase  in 
England  and  Wales  as  it  has  increased 
the  last  forty  years,  there  would  be  in 
the  year  1912  1,250,000  of  insane  per- 
sons.     It  was  estimated  that  in  1850 

VOL.  I. — 43 


there  was  in  Great  Britain  about  one 
lunatic  to  every  1000  persons.  Ac- 
cording to  the  very  elaborate  report 
of  the  Lunacy  Commissioners  of  Great 
Britain  in  1880  there  was  one  lunatic 
in  every  357  persons  ;  in  England  and 
Wales  the  year  before,  one  lunatic  in 
every  360  persons,  thus  showing  an 
increase  out  of  proportion  to  the  popu- 
lation, not  only  at  long  intervals,  but 
even  from  year  to  year.  The  statistics 
of  Massachusetts  also  show  an  increase 
of  lunacy  out  of  proportion  to  the 
population.  The  committee  says  it  is 
quite  safe  to  estimate  that  in  New 
York  there  are  in  and  out  of  asylums 
not  far  from  13,000  lunatics  in  a  poj^u- 
lation  of  only  5,000,000,  or  about  one 
to  every  384  of  the  population,  the 
proportion  not  dififering  essentially 
from  that  shown  by  the  statistics  of 
England  and  Scotland." 

The  report  makes  the  following 
points  : — 

1.  Insanity  is  a  nervous  disease,  to 
be  treated  largely  under  purely  medi- 
cal conditions. 

2.  It  is  in  a  great  measure  an  inci- 
dent of  complex. civilization. 

3.  Its  increase  is  out  of  proportion 
to  the  growth  of  population. 

4.  It  increases  more  rapidly  among 
the  poor. 

5.  It  has  become  less  and  less  cura- 
ble. 

6.  Special  provision  should  be  made 
for  the  cases  of  persons  "  mildly,  mod- 
erately insane." 

7.  Nervous  diseases  collateral  to  in- 
sanity are  largely  on  the  increase. 

The  report  closes  with  the  follow- 
ing :— 

"  8.  In  our  systematic  treatment  of 
the  insane  in  asylums,  public  and 
private,  and  in  our  supervision  of 
asylums,  we  are  in  this  state  very  far 
behind  Great  Britain.  While  there  is 
no  county  in  tli(;  world  where  physi- 

673 


§  770.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSTCHOLOGICALLY. 


cians  are  more  intelligent  than  here, 
yet  there  is  no  great  country  that  is  so 
far  behind  in  organizing  and  systema- 
tizing the  progress  that  has  been  made 
by  individuals  in  appropriate  legisla- 
tion, while  our  physicians  are  unsur- 
passed if  not  unequalled  in  scientific 
attainments  and  practical  skill  and  in 
hygienic  knowledge  in  the  treatment 
of  nervous  diseases,  including  insanity. 
We  are  behind  Europe  in  not  having 
a  central  supervisory  lunacy  commis- 
sion. In  England  this  commission  has 
existed  between  thirty  and  forty  years, 
and  it  has  in  that  time  wrought  many 
changes  and  instituted  many  valuable 
reforms  in  spite  of  superintendents 
and  officers  of  asylums  who  at  first 
were  jealous  of  any  interference.  The 
powers  of  the  commissioners  are  neces- 
sarily comprehensive,  but  they  are 
wielded  gently  yet  firmly,  and  very 
successfully.  The  commission  is  a 
guarantee  against  profligate  expendi- 
ture. The  commissioners  are  consulted 
in  regard  to  all  constructions,  altera- 
tions, and  improvements  in  asylum 
buildings,  and  in  regard  to  the  ap- 
pointment of  officers.  Their  reports 
each  year  give  elaborate  details  in 
regard  to  each  institution  which  they 
are  required  to  visit.  They  examine 
the  records  and  registers  of  asylums, 
give  heed  to  the  letters  of  patients  ad- 
dressed to  them,  see  that  if  possible  no 
patients  are  improperly  admitted  to 
asylums  or  improperly  retained  in 
them.  Patients,  whether  kept  in  pub- 
lic or  private  asylum,  are  regularly 
visited  by  them.  The  system  of  cen- 
tral governmental  supervision  in  Scot- 
land seems  to  be  even  better  than  that 
of  England,  in  that  it  is  more  simple 
if  not  more  thorough.  The  first  great 
need  of  our  state  is  the  appointment 
of  a  lunacy  commission,  consisting  of 
three  or  more  persons  specially  fitted 
for  such  an  important  trust,  and  when 

674 


such  a  commission  is  appointed  and 
vested  with  adequate  authority  by  ap- 
propriate legislation,  every  needed  re- 
form will  gradually  be  developed, 
while  under  the  present  system,  or 
rather  lack  of  system,  they  may  in  the 
future,  as  in  the  past,  be  retarded  to 
the  detriment  of  taxpayers.  The  ex- 
pense of  caring  for  the  insane  is  annu- 
ally increasing.  The  state  has  con- 
tributed money  enough  had  it  been 
judiciously  expended  in  construction 
to  have  furnished  a  well  appointed 
asylum  for  each  lunatic  in  the  state, 
as  well  as  for  the  estimated  increase  in 
the  next  twenty  years.  The  fault  is 
one  that  cannot  now  be  remedied,  but 
the  future  of  our  state  in  providing  for 
the  care  and  treatment  of  the  insane 
ought  to  be  wholly  exempt  from  the 
follies  of  the  past.  Among  those  who 
have  given  attention  to  the  subject 
there  is  entire  unanimity  that  the 
asylums  of  the  future  should  be  more 
simple  in  construction,  located  upon 
economical  farms,  where  patients  may 
be  employed  with  profit  to  the  state 
and  immeasurable  advantage  to  them- 
selves— less  to  gratify  the  esthetic 
taste  of  asylum  officials,  and  more  for 
the  comfort  and  recovery  of  the  in- 
sane. In  Europe  this  reform  is  already 
begun.  The  chronic  and  incurable 
insane  should  as  far  as  possible  be 
kept  apart  from  the  acute  insane. 
The  increase  of  insanity  has  been  to 
a  great  degree  among  the  chronic 
insane.  Patients  of  that  class  do  not 
need  the  expensive  accommodations 
and  appliances  of  a  curative  hospital. 
It  is  well  known  that  if  the  insane 
who  are  sent  to  asylums  do  not  recover 
during  the  first  year  of  treatment,  there 
is  little  ground  for  hope  of  recovery. 
They  pass  into  the  class  of  chronic 
insane.  Such  institutions,  for  instance, 
as  the  Island  Hospital,  of  New  York 
city,  have  no  excuse  for  their  existence. 


TREATMENT    OF    IXSANE    CRIMINALS. 


[§  770. 


The  chronic  insane  in  those  institu- 
tions could  be  and  should  be  kept 
economically  and  far  more  comfortably 
upon  a  farm  or  farms,  more  or  less 
remote  from  the  city,  where  they  could 
in  part  at  least  support  themselves  by 
their  labor.  Too  little  heed  is  given 
to  the  value  of  labor  as  a  therapeutic 
agent  in  our  asylums  generally.  In 
the  best  asylums  of  Europe  labor  is 
the  rule — nou-labor  the  exception.  Of 
541  pauper  patients  in  the  Royal  Edin- 
burg  Asylum  28  women  and  18  men 
only  were  prevented  by  their  condi- 
tion from  being  profitably  employed. 
In  the  West  Home  of  the  Eoyal  Edin- 
burgh Asylum,  there  were  347  private 
and  pauper  male  patients.  Of  these 
254  were  profitably  employed — 184  in 
outdoor  work.  Employment  is  not 
only  profitable  but  healthful.  In  the 
Willard  Asylum  every  patient,  male 
and  female,  in  a  condition  to  labor  is 
systematically  employed  in  some  way  ; 
if  not  always  profitable,  in  a  pecuniary 
sense,  yet  never  without  great  advan- 
tage to  the  patients.  On  these  points 
the  best  authorities  are  everywhere 
agreed,  viz.,  that  labor  is  an  invalua- 
ble aid  in  doing  away  with  mechanical 
restraint  and  also  with  the  use  of  nar- 
cotic remedies.  If  for  no  other  object 
than  the  substantial  abolition  of  me- 
chanical and  chemical  restraint  of  the 
insane,  humanity  demands  that  our 
asylum  authorities  make  emploj'ment 
of  patients  one  of  the  most  prominent 
and  distinguishing  features  in  their 
administration. 

"yl  humane  method  demanded.  —  The 
medical  officers  in  many  of  our  asy- 
lums and  the  attendants  also  under 
their  influence  show  a  disposition  to 
resist  the  introduction  of  changes  and 
improvements  in  asylum  management 
which  observation  and  experience  in 
other  countries  have  demonstrated  to 
be  invaluable  in  the  treatment  of  the 


insane.  We  do  not  doubt  that  our 
superintendents  as  a  class  are  men  of 
ability,  conscience,  and  humanity,  but 
the  pertinacity  with  which  the  most 
of  them  resist  the  introduction  of  me- 
thods which  distinguish  the  asylums 
of  England,  Scotland,  and  Germany 
above  all  others  is  not  easily  accounted 
for.  The  humane  advance  of  Piuel 
iu  removing  chains  and  other  cruel 
instruments  of  restraint  from  the  in- 
sane was  made  in  spite  of  earnest  pro- 
tests of  conscientious  men.  So,  at  a 
later  day,  when  Connolly  ventured  a 
step  further  and  favored  a  practical, 
absolute  non-restraint,  English  alien- 
ists resisted  vigorously  the  methods  of 
that  great  reformer  and  predicted  the 
most  disastrous  results  and  a  record 
in  the  management  of  the  insane  over 
which  humanity  would  blush.  But 
Connolly's  courage  was  equal  to  his 
convictions,  and  non-restraint  became 
the  rule  in  English  asylums,  and  his 
humane  example  has  not  ceased  to 
have  its  influence  in  other  countries. 
In  Scotland  every  appearance  of  re- 
straint is  being  removed — doors  are 
unlocked,  windows  are  not  disfigured 
by  massive  iron  bars,  almost  absolute 
freedom  is  given  to  inmates. 

"  T'a/Me  of  state  supervision. — We  do 
not,  of  course,  recommend  any  legisla- 
tion which  shall  determine  methods  of 
■  care  and  treatment,  but  it  is  our  confi- 
dent belief  that  central  state  super- 
vision will  aid  much  in  getting  the 
officers  and  attendants  out  of  the  rut 
which  long-continued  service  and  habit 
have  formed,  and,  what  is  of  prime 
importance,  will  tend  to  allay  the 
rapidly  growing  distrust  among  the 
people  by  afl"ording  just  assurance  that 
those  who  are  so  unfortunate  as  to  lose 
their  reason  are  treated  economically, 
scientifically,  and  humanely.  It  has 
been  stated  by  competent  persons  and 
is   believed   that   at   least   $2,000,000 

675 


§  770.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 


could  have  been  saved  to  the  state  in 
the  last  twenty  years  had  there  been 
intelligent  and  economical  state  super- 
vision over  building  of  asylums,  and 
that  without  any  sacrifice  of  the  com- 
fort of  the  patients.  The  committee 
think  it  is  unwise  to  authorize  the 
establishment  of  small  local  asylums 
for  the  care  of  the  insane,  as  in  almost 
every  case  it  must  happen  that  what 
the  taxpayer  saves  in  expense  is  more 
than  lost  to  the  patient  in  a  lower 
standard  of  care. 

"The  commission — the   creation   of 
which  we  recommend — should  be  given 

676 


ample  powers  to  look  after  the  inter- 
ests of  the  state  in  the  matter  of  ex- 
penditure and  to  protect  the  patient 
in  the  matter  of  physical  care,  with 
full  powers  to  redress  all  grievances 
and  remedy  whatever  wrong  they  may 
discover." 

See,  in  this  connection,  an  interest- 
ing and  able  pamphlet  entitled  Some 
Remarks  on  Crime-Cause,  by  the  Hon. 
Richard  Vaux  (Phila.  1879),  originally 
printed  in  the  Report  of  the  Secretary 
of  Internal  Affairs  of  Pennsylvania  for 
1875-6. 


PSYCHICAL   INDICATIONS. 


CHAPTER  XI. 


PSYCHICAL  INDICATIONS. 


Importance  of  psychical  indications,  § 
771. 

1.  Prior  to  Crime. 
1.  Preparations. 

Inference  from  as  indications  of  guilt, 

§  773. 
Palmer's  case,  §  774. 

2.  Intimations. 

Direct  belong  to  ruder  states  of  society, 
§775. 

Indirect  the  more  significant  in  civil- 
ized life,  §  776. 

So  of  precautions,  §  777. 

Significance  of  prophetic- intimations, 
§  778. 

Superstitious  tendency  to  forewarn,  § 
779. 

3.  Overacting. 

Suspiciousness  of  sudden  accessions  of 
friendship,  §  780. 

II.  At  Crime. 
1.  Incoherence. 
Conspicuousness  of  crime,  §  781. 
Impossibility   of  perfect   execution,    § 

782. 
Zwanziger's  case,  §  783. 
Fauntleroy's  case,  §  784. 
Crowninshield's  case,  §  785. 
Tichborne  case,  §  786. 
Lefroy's  case,  §  786rt. 

2.  Self -overreaching . 
Inference  from  excessive  precautions, 

§787. 
From  life  insurance,  §  787  a. 


III.  After  Crime. 
1.    Convulsive  confessions. 
Confessions  may  be  instinctive,  §  788. 
When  in  delirium  or  dreams,  §  789. 
From  callousness,  §  790. 
Cautions  as  to  confessions  under  de- 
lusion, §  791. 

Delusions.    Case  of  the  Boorns,  §  791  a. 

From  desire  for  notoriety,  §  792. 

From  interest,  §  793. 

From  morbid  excitement,  §  794. 

From  nervous  derangement,  §  795. 

From  alleged  supernatural  possession, 
§796. 

Not  necessarily  insane,  §  797. 

Retributive  element  in  secret  sin,  §  798. 

From  mania,  §  799. 

From  epidemic  influence,  §  800. 

From  weariness  of  life,  §  801. 

As  a  mode  of  suicide,  §  802. 

Sanity  always  a  condition  of  reliabil- 
ity, §  803. 

Corpus  delicti  to  be  proved,  §  804. 

2.  Nervous  tremor. 
Consequent  on  sense  of  guilt,  §  805. 
Peterson's  case,  §  806. 
Webster's  case,  §  808. 
Weston's  case,  §  809. 
Queen  Elizabeth,  §  810. 
Inference  from  instinctive  faltering  or 
self-inflicted  pain,  §  811. 

3.  Morbid  propensity  to  recur  to  scene 
of  guilt. 
Disclosures  thus  produced,  §  812. 
Eugene  Aram's  case,  §  813. 

677 


§  771.]    MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 


Robinson's  case,  §  814. 
Farrar's  case,  §  815. 

4.   Permanent  mental  wretchedness. 
Entire   extinction   of  conscience   rare, 

§  816. 
Memory  permanent,  §  817. 
Conscience  autocratic,  §  818. 
Illustrations,  §  819. 
Effect   of  extraneous  circumstances,  § 

820. 
Sadlier's  case,  §  821. 
Distinction  between  remorse  and  grief, 

§  822. 


Disguised  suicide  as  a  recognition  of 
public  sense  of  right,  §  823. 

5.   Animosity  among  confederates. 
Tendency  in  confederates  to  disagree, 

§  824. 
"  Honor  among  thieves"  only  during 

community  of  interest,  §  825. 
Illustrations,  §  826. 

IV.  GE^'EEAL  Conclusions. 
Conscience  part  of  divine  economy,  § 

830. 
Punishment  is  retributive,  §  833. 


Importance 
of  psychical 
indications. 

its  suilt. 


§  771.  Mr.  Raavlinson,  as  his  motto  to  the  Barapton  Lectures 
of  1859,  takes  the  following  from  Aristotle  : — 

T9  ^iv  ya^  dXridd   rtdvra   avva^si   ta   vnd^xovva,  Tqi  8s    -^svSd   -taxv   Sia^ai'ft 

(for  with  the  true  all  things  that  exist  are  in  harmony  ; 

BUT  with  the  false  THE  TRUE  AT  ONCE  DISAGREES.) 

This  conflict  between  the  true  and  the  false  arises  in  all  cases 
where  guilt  is  attempted  to  be  screened  by  human  con- 
trivance. The  mind  involutitarily  becomes  its  own 
prosecutor.  It  drops  at  each  point  evidence  to  prove 
Each  statement  that  it  makes — each  subterfuge  to  which 
it  resorts — each  pretext  it  suggests — is  a  witness  that  it  prepares 
and  qualifies  for  admission  on  trial.  In  this,  and  in  the  univer- 
sality of  the  psychological  truth  that  guilt  cannot  keep  its  counsel, 
we  may  find  an  attribute  of  divine  justice  by  which  crime  is  made 
involuntarily  its  own  avenger.  Man  cannot  conceal  the  topic  of  a 
great  crime,  either  anticipated  or  committed.  It  sometimes  leaps 
out  of  him  convulsively  in  dreams  ;  sometimes  a  false  cunning  leads 
him  to  talk  about  it  to  know  what  suspicions  may  be  afloat ;  some- 
times that  sort  of  madness  which  impels  people  to  dash  themselves 
from  a  high  tower  forces  him  to  the  disclosure.  Even  his  silence 
telis  against  him  ;  and,  when  it  does  not,  the  tremor  of  the  body 
supplies  the  place  of  the  tremor  of  the  mind.  J^or  can  he  keep 
peace  Avith  his  associates.  There  is  a  disruptive  power  in  con- 
sciousness of  common  guilt,  which  produces  a  hatred  so  demonstra- 
tive, that,  if  it  does  not  supply  the  proof,  it  attracts  the  suspicion 
of  a  great  wrong  having  been  done. 
678 


PSYCHICAL    INDICATIONS    PRIOR   TO    CRIME.  [§  774. 

I.    PRIOR  TO  CRIME. 

1.  Preparations} 

§  773.  In  the  preparation  for  acts  of  guilt  the  most  astute  leave 
unguarded  points.  Poison  has  to  be  obtained  some-  inference 
where.  For  domestic  purposes  it  might  be  boldly  pur-  ^'■°™- 
chased  ;  but  the  poisoner,  in  a  vast  majority  of  cases,  is  impelled  to 
a  more  circuitous  course.  He  buys  it  to  kill  vermin,  and  then 
gives  a  false  excuse — as  in  a  case  where  the  prisoner  pointed  to  a 
mouse  which  he  said  was  killed  by  the  poison,  when  in  fact,  it 
turned  out  that  the  mouse  was  not  so  killed.  He  places  a  loaded 
pistol  on  his  person  on  a  pretext  which  he  takes  care  to  announce, 
but  which  turns  out  in  like  manner  to  be  false.  There  is,  in  almost 
every  kind  of  crime,  a  swelling  of  the  upper  soil  which  shows  the 
subterranean  road  which  the  criminal  travelled.  It  would  seem  as 
if  it  Avere  a  germinal  element  of  guilt  that  it  cannot  work  Avithout 
such  memorials.  Adroit  management  may  lure  witnesses  away 
from  the  intended  spot — the  greatest  caution  may  be  shown  in  the 
purchasing,  the  collecting,  or  the  fashioning  of  instruments — but 
still  the  traces  remain,  ready  to  increase  the  presumption,  if  not  the 
positive  material  for  conviction. 

§  774.  At  the  Shrewsbury  races,  in  November,  1856,  appeared 
two  young  men,  each  of  whom  had  large  stakes  involved  paimer's 
— in  each  case  those  of  life  and  death.  Polestar,  one  of  '^'^^®' 
the  horses  entered,  belonged  to  John  Parsons  Cook ;  a  sporting 
character  and  spendthrift,  and  not  much  besides.  He  had  inherited 
a  considerable  estate,  but  a  large  portion  of  this  had  gone  in  dissi- 
pation, and  now,  the  result  of  the  race  Avas  to  decide  whether  the 
remnant  was  to  be  doubled  or  destroyed.  Watching  him  pretty 
closely,  though  Avith  an  otf-hand  familiarity  Avhich  required  an  ex- 
perienced eye  to  penetrate,  Avas  William  Palmer,  a  man  several 
years  his  senior,  whose  fortune,  Avhich  had  also  been  considerable, 
Avas  noAV  entirely  gone.  The  "  Chicken"  Avas  Palmer's  horse,  and 
on  this  he  had  ventured  enormous  bets.  But  he  had  a  double  game. 
Ruin,  it  is  true,  Avas  imminent,  but  there  Avas  a  method  of  escape. 
He  Avas  a  medical  man,  and  he  had  discovered  the  fatal  properties 
of  strychnine — how  that  it  produced  a  disease  scarcely  to  be  dis- 

•  As  to  the  admissibility  of  proof  of  tins  class,  see  Wli.  Cr.  Ev.  8th  od.  §  753. 

t)79 


^  774.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGIC  ALLY. 

tinguished  from  lockjaw — how  it  could  be  administered  without 
exciting  the  victim's  attention — what  was  the  minimum  dose  neces- 
sary to  take  life,  and  how,  when  this  dose  alone  was  administered, 
the  poison  was  dispersed,  leaving  no  traces  behind.  He  had  a  book 
in  which  these  points  were  stated,  and  to  make  himself  certain,  he 
not  only  turned  down  the  book  at  the  place,  but  made  a  memoran- 
dum giving  the  substance  in  his  note-book.  He  w"as  a  man  of  the 
world,  and  he  made  himself,  without  appearing  to  do  so,  thoroughly 
master  not  only  of  Cook's  confidence,  but  of  his  secrets.  He  knew 
that  Cook  had  a  disease  which  produced  sores  on  the  tongue  which 
might  be  considered,  if  talked  about  in  the  right  light,  as  the  cause 
of  lockjaw,  so  he  proceeded  to  tell  about  them  in  this  light.  He 
knew  how  to  imitate  hand-writing.  So  he  wrote  a  paper  by  which 
Cook  acknowledged  himself  his  debtor  in  a  sum  sufficient  to  absorb 
all  Cook's  effects.  "  Polestar"  won  and  "  Chicken"  was  beaten. 
Palmer,  in  his  careless,  sporting  way,  borrowed  Cook's  winnings  to 
pay  his  losses.  Then  everything  was  I'eady  to  poison  Cook,  and 
the  work  was  done  with  complete  coolness  and  success.  A  little 
preliminary  sickness  was  induced,  during  which  nothing  could  be 
more  kind  and  yet  less  officious  than  Palmer's  attentions.  It  is 
true  the  strychnine  had  to  be  bought,  but  this  was  done  in  a  circuit- 
ous way,  and  under  a  false  color.  Then  it  had  to  be  administered,  but 
two  medical  men,  of  undoubted  probity,  were  called  in,  and,  as  they 
recommended  pills,  it  was  very  easy  to  substitute  pills  of  strychnine 
for  pills  of  rhubard.  So  Cook  was  killed,  and  this  so  subtly,  that 
the  attending  physician  gave  a  certificate  of  apoplexy.  As  to  the 
post-mortem,  Palmer  knew  it  would  not  amount  to  much,  nor  did  it. 
No  strychnine  was  discovered,  but  here  the  nerves  of  Palmer  gave 
way.  He  showed  an  undue  fidgetiness  while  the  examinations  were 
going  on.  He  tried  to  tamper  with  the  vessels  in  which  the  parts 
to  be  examined  were  placed.  Then,  also,  the  note  he  produced  to 
show  Cook's  indebtedness  to  him  was  suspected ;  and  then  Cook's 
betting  book  could  not  be  found.  This  led  to  Palmer's  arrest.  The 
first  medical  authorities  in  England  proved  that  Cook's  death  came 
from  strychnine  and  nothing  else.  The  apothecaries  from  whom 
the  strychnine  was  bought,  attracted  by  the  discoveries,  identified 
Palmer.  In  a  dark  passage  he  had  been  seen  to  drop  something 
into  a  glass  for  the  sick  man,  but  the  passage  was  not  so  dark  but 
that  he  was  observed.  Then  his  note-book  turned  up,  showing  how 
680 


PSYCHICAL   INDICATIONS    PRIOR   TO   CRIME.  [§  775. 

acquainted  he  was  with  the  poison.  And  upon  these  facts,  skilful 
as  he  was,  and  completely  as  he  had  covered  up  his  guilt  from  the 
superficial  eye,  he  was  convicted  and  executed. 

2.  Intimation  %} 

§  775.  Intimations  are  to  be  tested  by  the  character  of  the  party 
from  whom  they  emanate.  In  the  present  connection,  they  may  be 
divided  into  three  classes. 

Direct  intimations  are  the  less  frequent.     The  coarse  old  feudal 

baron,  over  whom  there  was  no  law  which  would  inter-    t^.     ,  , 

'  Direct  be- 

fore to  make  a  threat  defeat  itself — whose  importance    long  to 

ruder 

depended  upon  the  emphasis  with  which  he  pursued  his    states  of 
enemies — to   whose    temper    deceit   was    intolerable —   ^°"*^  ^' 
threatened  dashingly,  and  performed  implacably.      So  the  Scotch 
clansman  followed  his  hereditary  vengeance  until  the  last  of  the 
tribe  he  hated  was  extinguished. 

Now"  in  these  cases  there  was  neither  parsimony  nor  insincerity 
in  the  threat,  and  no  reserve  in  the  execution.  What  was  said  was 
meant.  It  is  only,  however,  in  the  rudest  and  most  lawless  states 
of  society  that  we  now  find  this  phase  o  In  a  community  where 
there  is  a  justice  of  the  peace,  to  threaten  life  is  followed  by  a 
binding  over  to  keep  the  peace  ;  and  such  a  threat,  therefore, 
is  rarely  heard  except  as  a  bluster.  Civilization,  it  is  true, 
has  not  extracted  the  venom  from  homicide,  but  it  has  mufiled  its 
rattle. 

There  are  cases,  however,  where  the  rattle  is  still  heard.  A 
purpose  of  vengeance  may  be  whispered  in  a  friend's  ear.  Among 
men  over  whom  there  is  no  law,  in  the  mountain  slopes  or  prairie 
sweeps  to  Avhich  no  jurisdiction  except  that  of  the  vigilance  com- 
mittee has  reached — among  the  hunters  of  the  wilderness  who 
have  preceded  law,  or  the  wreckers  of  the  coast  who  have  defied 
it,  or  the  outcasts  of  the  city  who  have  been  rejected  by  it — in 
those  cases  of  domestic  outrage  where  social  usage  seems  to  permit 
vengeance  being  taken  into  private  hands — here  threats  may  be 
the  precursor  of  deeds.  Desperation,  also,  gives  out  the  same 
warning ;  and  in  such  cases  the  Avarning  uttered  is  of  real  conse- 
quence. 

•  See  as  to  admissibility  of  evidence  of  this  class,  Wh.  Cr.  Ev.  8tli  ed.  §§  756 
et  seq. 

681 


§  776.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

Then,  again,  a  threat  -which  may  be  meant  merely  as  bravado 
may  afterwards  become  a  real  and  desperate  purpose.  Provoca- 
tion— opportunity — the  desire  to  save  the  character  from  the  impu- 
tation of  mere  bullying — may  stiffen  the  attempt  to  frighten  into 
an  attempt  to  destroy.  Or,  again,  a  settled  animosity  may  be 
produced,  which  may  lead,  though  circuitously,  to  secret  mischief. 

Taking  out  these  exceptions,  however,  and  assuming  the  case  to 
be  that  of  a  man  of  ordinary  prudence,  where  there  is  no  proved 
settled  purpose  of  revenge,  and  in  a  community  where  the  usual 
restraints  of  the  law  are  applied,  it  becomes  unsafe  to  connect 
threats  previously  uttered  by  such  a  party  with  a  recent  homicide. 
"  The  tendency  of  such  a  prediction,"  says  Mr.  Bentham,  "is  to 
obstruct  its  own  accomplishment.  By  threatening  a  man,  you  put 
him  upon  his  guard,  and  force  him  to  have  recourse  to  such  means 
of  protection  as  the  force  of  the  law,  or  any  extrajudicial  powers 
which  he  may  have  at  command,  may  be  capable  of  affording  him." 
In  the  case  last  put,  it  is  not  likely  that  the  one  who  really  accom- 
plished a  deed  which  would  lead  to  condign  punishment  was  the 
one  who  publicly  threatened  it. 

The  weight  to  be  attached  to  such  threats  depends  upon  the 
state  of  society  at  the  time.  In  a  rude  and  barbarous  community 
the  assailants  who  intend  violence  are  apt  to  threaten  it.  In  a 
civilized  community,  where  justice  is  efficiently  administered,  the 
intention  to  perform  deeds  of  violence  is  concealed. 

^  776.  In  high  states  of  civilization,  where  direct  threats  are 

J  ,.     ^        not  often  heard,  the  preparations  for  a  crime  are  much 

the  more       more   likely  to    be   found  in  ambuscades   likely  to   in- 
significant        ....         .....  .  .       .        1  •  1    1 

in  civilized    veigle  the   intended  victim  into  a  position  m  which  he 

^^^^'  will  more  readily  fall  a  prey.     "When  the  massacres  of 

St.  Bartholomew  were  planned,  the  Huguenot  chiefs  were  invited 

to  Paris  on  the  pretence  of  the  wedding  between  Henry  of  Navarre 

and  Margaret  of  Yalois.     "  This  politeness  of  the  Italian  Queen  is 

very  suspicious,"  said  the  more  wary  of  them;  "she  kisses  whom 

she  would  betray."      But  they   went,  were  caressed,  and  were 

massacred. 

The  Admiral  Coligny  had  been  wounded  by  an  assassin  under 

the  pay  of  the  Duke   of  Guise.     He  lay  helpless  on  his  sick-bed, 

when   Charles  IX.,  then  a  boy  of  only  nineteen,  but  thoroughly 

682 


PSYCHICAL    INDICATIONS    PRIOR    TO   CRIME.  [§  776. 

schooled  by  his  malign  mother,  was  announced.  The  Huguenots 
were  thoroughly  aroused  by  the  attack  on  the  admiral.  The  pre- 
parations for  crushing  them,  however,  were  not  then  complete.  It 
was  necessary  that  they  should  he  quieted  and  kept  together.  So 
Charles  entered  into  the  admiral's  chamber,  and,  throwing  his  arms 
around  the  aged  warrior,  said,  "  Father,  you  received  the  wounds, 
but  1  the  sorrow."  Two  or  three  nights  afterwards,  Coligny, 
hacked  and  helpless  as  he  was,  was  torn  from  his  bed  and  cut  to 
pieces.  Then  his  body  was  dragged  through  the  streets,  and  at 
last  his  trunk  was  kicked  about  like  a  foot-ball  in  the  presence  and 
for  the  diversion  of  the  young  king,  who  had  shortly  before  em- 
braced it.  "Had  it  been  the  mother,"  said  the  survivors,  "  we 
would  have  had  suspicion ;  but  it  was  only  the  boy."  Here  was 
the  Medicean  mask — the  very  luxury  of  artifice  in  which  Catharine 
of  Medicis  enveloped  herself  when  about  to  commit  a  crime  ;  and 
yet,  from  its  very  excess,  it  was  a  premonition.  So  it  is  that  subtle 
guilt,  in  the  very  degree  to  which  its  subtlety  is  refined,  gives  its 
own  warning,  and  at  all  events  invokes  its  own  retribution.  For 
the  recoil  of  St.  Bartholomew's  night  destroyed  the  House  of  Valois 
far  more  effectually  than  did  the  massacre  of  the  Huguenots. 
Charles  IX.  died  only  a  few  years  after,  of  a  disease  in  which 
nervous  horror,  if  not  remorse,  was  the  prime  agent,  and  so  did 
men  turn  from  him,  that  his  body  was  deserted  when  on  its  way  to 
the  grave,  and  was  followed  to  St.  Denis  by  only  three  private 
gentlemen.  His  brother,  Henry  III.,  who  succeeded  him,  was  the 
last  of  his  race. 

Cowardice  may  work  in  the  same  way,  from  the  fear  of  being 
struck  back,  if  a  face-to-face  blow  be  attempted.  So  it  Avas  with 
James  I. :  — 

""Willing  to  wouud,  and  yet  afraid  to  strike." 

"When  he  was  rolling  the  execution  of  the  Earl  of  Somerset  as  a 
sweet  morsel  in  his  mouth,  he  hung  about  the  neck  and  slabbered 
over  the  face  of  that  unfortunate  favorite.  It  is  not  that  he  wanted 
to  entrap — Somerset  was  caught  already.  Nor  did  he  want  to 
prevent  detection,  for  he  afterwards  never  shrank  from  the  moral 
consequence  of  the  deed.  It  was  merely  because  he  was  physically 
afraid  to  face  a  collision. 

683 


§  778.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§  777.  Precautionary  intimations  are  entitled  to  peculiar  weight.^ 
So  of  pre-  ^f  these  the  following  may  be  taken  as  illustrations : 
cautions.  Captain  Donellan  was  tried  in  Warwick,  in  1781,  for  poi- 
soning Sir  Theodosius  Boughton,  on  whose  estates  his  wife  had  a 
reversionary  interest.  The  defendant  had  no  doubt  long  formed  a 
plan  by  which  the  deceased  was  to  be  removed.  To  exclude  sus- 
picion, the  idea  was  thrown  out  long  in  advance  that  the  latter's 
health  w^as  desperate — that  speedy  death  was  certain — that  his 
imprudence  was  constantly  heaping  up  causes  upon  causes  to  pro- 
duce it. 

When  Sir  Thomas  Overbury  was  in  the  tower,  and  when  the 
arrangements  for  his  poisoning,  under  the  direction  of  the  Countess 
of  Somerset,  were  made,  the  doctors,  whom  the  countess  had  in 
pay,  were  careful,  long  before  the  poison  took  effect,  to  announce 
that  the  patient  was  very  sick,  and,  indeed,  "  past  all  recovery." 
It  Avas  a  trick  to  prevent  surprise. 

§  778.  Prophetic  intimations,  though  less  rare,  may  indicate  the 
parties  who  have  been  brooding  over  some  projected 
canceof  crime.  Those  who  approach  a  crime  under  the  stress, 
intima^-^^  either  felt  or  assumed,  of  a  supernatural  decree,  often 
tions.  move  with  the  pomp  worthy  of  so  grand  a  mission.     The 

muttered  forebodings  of  the  fanatic  precede  the  fanatic's  blow. 
The  assassinations  of  John  of  Leyden,  and  the  assassinations  of 
Joe  Smith,  were  always  ushered  in  by  intimations,  more  or  less 
obscure,  that  the  intended  victim  had  fallen  under  the  divine  ban. 
Nor  can  we  dismiss  this  as  mere  hypocrisy.  The  consciousness, 
though  only  partially  sincere,  of  a  supernatural  impulse,  cannot  be 
completely  repressed.  The  Greek  tragedians  felt  this  when  they 
made  those  who  meditated,  under  such  an  impulse,  a  deed  of  blood, 
bear  witness  to  their  awful  mission  by  their  dark  forebodings  of 
misery  to  him  they  Avould  destroy.  So  it  was  that  Clytemnestra 
stalked  over  the  stage,  relating  to  the  sympathetic  chorus  the 
terrors  before  her  eyes  and  the  fate  by  which  she  was  driven,  and 
so  it  was  that  they  ejaculated  back  their  admiring  horrors.  So  it 
was  with  the  first  Napoleon,  with  whom  this  sense  of  the  super- 
natural was  sometimes  master,  sometimes  creature.  He  knew  how 
to  use  it  to  overreach  others  ;  but  he  knew  not  how  to  use  it  with- 

I  See  Wh.  Cr.  Ev.  8tli  ed.  §§  734  et  seq. 

684 


PSYCHICAL    INDICATIONS    PRIOR   TO   CRIME.  [§  779. 

out  its  sometimes  overreaching  himself.  In  the  very  face  of  policy 
he  could  not  always  conceal  within  himself  the  decrees  of  destiny 
with  which  he  supposed  himself  charged.  Thus  the  death  of  the 
Duke  d'Enghien  was  muttered  forth  by  him  long  before  the  fatal 
arrest ;  and  so  before  sovereign  houses  ceased  to  reign  came  the 
intimations  of  this  vice-regent  of  destiny  that  the  decree  was  about 
to  issue.  It  was  not  mere  threats — it  was  not  ambuscade — it  was 
the  involuntary  witness  borne  against  itself  by  crime  acting  under 
the  guise  of  fate. 

§  779.    Among  the  vulgar  these  intimations  are  not  infrequent. 
Murderers,  especially  in  the   lower  walks  of  life,  are 
frequently  found  busy  for  some  time  previous  to  the  act   tiousTen- 
in  throwing  out  dark  hints,  spreading  rumors,  or  utterinor   ^'^^^y  to 

o  5    r  o  5  o    forewarn. 

prophesies  relative  to  the  impending  fate  of  their  in- 
tended victims.  It  would  seem  as  if  the  criminal  intention  could 
not  be  kept  secret;  that  it  must  in  some  way  be  let  out.  Susannah 
Holroyd  was  convicted,  at  the  Lancaster  assizes  of  1816,  for  the 
murder  of  her  husband,  her  son,  and  the  child  of  another  person. 
About  a  month  before  committing  the  crime,  the  prisoner  told  the 
mother  of  the  child  that  she  had  had  her  fortune  read,  and  that, 
within  six  weeks,  three  funerals  would  go  from  her  door,  namely, 
that  of  her  husband,  her  son,  and  of  the  child  of  the  person  whom 
she  was  then  addressing.  And  so,  on  the  trial  of  Zephon,  in 
Philadelphia,  in  1845,  it  was  shown  that  the  prisoner,  who  was 
a  negro,  had  got  an  old  fortune-teller  in  the  neighborhood,  of 
great  authority  among  the  blacks,  to  prophesy  the  death  of  the 
deceased. 

When  there  is  a  family  or  local  superstition,  it  may  be  invoked 
for  the  same  purpose.  Thus  Miss  Blandy,  when  her  preparations 
for  poisoning  her  father  were  in  progress,  threw  out  references  to 
the  supernatural  music  with  which  the  house  was  pretended  to  be 
pervaded — music  which,  according  to  tradition,  betokened  a  death 
in  twelve  months. 

It  is  in  these  several  classes  of  intimations,  most  of  them  in- 
voluntary, that  we  find  another  instance  of  the  self-detective  power 


of  guilt. 


685 


§  781.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOarCALLY. 

3.  Overacting. 

§  780.    Extraordinary  affection  is  often  simulated  before  a  near 
relative  is  removed  by  poisoning.      Thus,  a  husband  is 
ness  of  reconciled  to  and  lives  with  his  wife  whom  he  intends  to 

accessions  dispatch  ;  and  a  wife,  as  in  Mrs.  Chapman's  case,  be- 
ef friend-  comes  singularlv  demonstrative  in  her  public  attentions 
ship.  o  ./  r  ^ 

to  her  husband.  Mary  Blandy,  at  the  time  her  father 
was  writhing  under  poisons  she  had  herself  administered,  heaped  on 
him  attentions  so  inappropriate  to  his  condition  as  to  become  the  sub- 
ject of  suspicion  then,  and  the  ingredients  of  proof  afterwards.  So 
industrious  declarations  of  friendliness  and  fairness  not  unfrequently 
are  thrown  out  prior  to  an  assassination.  The  alleged  sudden  ac- 
cess of  attention  by  Mary  Queen  of  Scots  to  Darnley  shortly  before 
his  murder  is  one  of  the  points,  it  will  be  remembered,  urged  most 
strongly  against  her  by  Mr.  Froude. 

II.    AT    CRIME. 

1.  Incoherence. 

§  781.  "  Providence,"  said  Mr.  Webster,  in  his  speech  in  Knapp's 
r,       .  case,  "  hath  so  ordained,  and  doth  so  govern  things,  that 

Conspicu-  '  '  &  &  5 

ousness  of    those  who  break  the  great  law  of  Heaven  by  shedding 

crime  %/  <~j 

man's  blood  seldom  succeed  in  avoiding  discovery.  Dis- 
covery must  come  sooner  or  later.  A  thousand  eyes  turn  at  once 
to  explore  every  man,  every  thing,  every  circumstance,  connected 
with  the  time  and  place  ;  a  thousand  ears  catch  every  whisper  ;  a 
thousand  excited  minds  intensely  dwell  on  the  scene,  shedding  all 
their  light,  and  ready  to  kindle  the  slightest  circumstance  into  a 
blaze  of  discovery."^ 

1  "  The  detection  of  a  forgery  by  the  color,  and   even   texture — so  that  the 

paying-teller  of  the  Bank  of  the  Re-  thing  becomes  a  unity  in  his  mind,  or 

public     (in   1872)    was   a   remarkable  rather  to  his  perception.     The  smallest 

instance  of  the  unconscioixs  dexterity  variation,  therefore,  makes  a  discord, 

which  habit   gives.      Tlie    check    ap-  and   induces  scrutiny.      In  this  case, 

peared  to  be  drawn  by  a  well-known  they  cannot  tell  what  it  was  that  led 

house,  and  was  upon  the  peculiar  form  him  to  examine  the  signature,  which, 

of  blank  used  by  that  house.     A  tel-  although    it   proved    a    forgery,    was 

ler's  eye  learns  to  connect  the  usual  so     closely    imitated,    that    a    careful 

writing  of  every  dealer  with  the  blank  comparison   with   the  genuine  hardly 

commonly  used  by   him  —  its   shape,  justified  suspicion.      But    lie   remem- 

686 


PSYCHICAL    INDICATIONS    AT    CRIME. 


[§  783. 


§  782.  While   there  is   on   the   one  hand   this   concentration   of 

observation,  there  is   an  almost  unlimited  multiplication 

of  points  to  be   observed.     The   criminal  stands   in  the    {,j'iitv^of 

position  of  a  country  which  has  a  coast  line  of  indefinite    perfect 

execution, 
extent,  compelled  to  meet  an  adversary  whose  powerful 

and  vigilant  fleet  commands  the  seas.  There  is  this  distinction, 
however,  between  the  cases.  The  coast  line  may  be  broken  with- 
out ruin,  but  not  so  the  line  of  a  criminal's  defence.  A  single  false 
position  in  his  plans — such,  for  instance,  as  the  omission  to  wash 
off  a  blood-stain — the  leaving  a  letter  or  a.  paper  disclosing  identity, 
in  the  room — the  forgetting  that  snow  was  on  the  ground,  by  which 
footprints  could  be  tracked — over-industry  in  setting  up  a  sham 
defence — sudden  forgetfulness  in  answering  to  a  real  and  not  a 
feigned  name — is  destruction.  And  yet  this  is  the  necessity  of  all 
who  seek  to  cover  up  guilt.  They  are  acting  a  part  which,  to  be 
perfectly  acted,  requires  perfect  skill,  perfect  composure,  perfect 
foresight,  perfect  powers  of  self-transposition.  Now  we  all  know 
how  impossible  it  is  for  even  the  most  consummate  actor  to  be  true 
to  an  assumed  character  for  an  hour,  and  this  under  the  tension  of 
the  stage.  Yet  this  is  required  of  a  criminal  constantly,  in  the 
lassitude  of  home,  as  well  as  in  the  excitement  of  public  observa- 
tion, in  his  chamber  as  well  as  in  the  court-house. 

§  783.  Of  all  the  great  poisoners,  the  most  stealthy  and  feline, 


bared  that,  as  he  took  the  check  in 
hand,  the  paper  seemed  a  little  stiffer 
than  that  commonly  used  by  the  firm  ! 
So  slight  are  the  clues,  sometimes,  that 
lead  to  the  discovery  of  crimes. 

"Rogues  are  rarely  philosophers,  or 
they  would  not  be  rogues.  The  equi- 
librium of  things,  so  nicely  adjusted  to 
universal  fair-dealing,  is  disturbed  by 
the  slightest  deviation  from  right.  As, 
on  strings  stretched  in  every  direction, 
a  thrill  passes  to  the  social  limit  of  the 
central  offending  blow,  the  culprit  feels, 
although  he  may  be  unconscious  of  the 
feeling,  that  all  unseen  powers  and  in- 
telligences are  in  league  against  him. 
By  dint  of  self-control  he  may  bear  an 
unmoved  face  ;    but  his  soul  is    alert 


and  suspicious,  and  a  whisper,  a  look, 
or  a  rustle  frightens  him.  No  cunning 
can  effectually  evade  this  law  ;  the 
more  artful  go  a  little  further,  that  is 
all.  It  is  a  curious  fact,  that  in  its 
operation  the  expertest  thief-taker  in 
the  world  is  habit — not  in  great  things 
necessarily,  but  just  as  much  in  little 
things ;  not  a  wise,  observing,  or 
thoughtful  man's  habit,  but  even  more 
commonly  a  simple  man's  habit,  often 
a  child's.  Something  is  displaced  with- 
out ordinary  or  adequate  cause,  and 
the  person  whose  unconscious  habit  is 
tbus  violated  looks  twice,  and  the 
second  look  proves  too  much  for  the 
secrecy  of  the  crime  that  broke  the 
slight  but  charmed  thread." 

687 


§  784."!      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

Zwanzi-  we  have  been,  told,  was  the  widow  Zwanziger,  known  in 
gerscabe.  }jjg{;Qj.y  j^y  ^]^q  name  of  her  last  husband,  the  Privj- 
Councillor  Ursinus,  of  Berlin.  Madame'  de  Brinvilliers  was  an 
enthusiast,  who  poisoned  with  a  spread  and  dignity  of  circumstances 
which  necessarily  invited  detection.  The  widow  Zwanziger,  on  the 
other  hand,  slid  softly  about  from  house  to  house  poisoning  unob- 
trusively. So  quiet  and  hom3-like  were  her  attentions  to  the 
deceased — so  deep  and  yet  so  well  controlled  her  grief — so  com- 
pletely her  whole  deportmemt  that  of  a  tender,  sober,  and  yet 
undemonstrative  friend,  that  when  her  lover,  who  began  to  be 
tired  of  her — her  husband,  of  whom  she  began  to  be  tired — her 
aunt,  whose  heir  she  was — successively  sickened  and  died,  she  was 
the  last  who  would  have  been  suspected  of  having  dispatched  them. 
Yet  this  most  experienced,  self-disciplined,  and  wary  of  poisoners — 
this  actress  so  consummate  that  to  the  end  she  played  the  parts  of 
the  lady  of  fashion,  and  the  sentimental  and  pietistic  poetess,  Avith 
a  perfection  that  showed  no  flaw — was  careless  enough,  when  en- 
gaged in  such  common  game  as  the  poisoning,  as  if  merely  to  keep 
her  hand  in,  of  an  ordinary  man-servant — to  leave  the  arsenic  open 
in  a  room  where  her  intended  victim,  made  curious  by  one  or  two 
abortive  operations  she  had  attempted  on  him,  scented  it  out,  car- 
ried it  to  a  chemist,  and  established  the  fact  that  it  was  of  the 
same  character  with  the  poison  by  which  she  had  seasoned  some 
prunes  she  had  been  giving  to  him  for  dessert. 

In  the  same  line  may  be  mentioned  the  case  of  Mrs.  Sherman, 
hereafter  noticed.^ 

§  784.  Equally  wary  and  artistic,  though  in  a  different  line  of 
Fauntie-  g^^^^^?  ^as  Fauntleroy,  perhaps  the  most  complete  forger 
roy's  ease,  of  modern  times.  He  was  subtle,  reticent,  accomplished, 
and  imperturbable.  In  a  long  course  of  years,  he  perfected  a  sys- 
tem of  forgery,  by  means  of  which  he  obtained  the  transfer  of 
stocks  entered  in  the  bank  of  England,  in  the  names  of  various  per- 
sons, to  the  amount  of  .£100,000.  Such  was  the  thoroughness  of  the 
fictitious  accounts  and  false  entries  by  which  his  forgeries  were 
covered  up,  that  his  partners  and  clerks,  as  well  as  the  bank,  were 
deceived,  and  yet,  at  the  very  time  he  was  weaving  a  veil  otherwise 
impenetrable,  he  took  the  extraordinary  step — a  step  unaccounta- 

'  Infra,  §  790. 

688 


PSYCHICAL    INDICATIONS    AT    CRIME.  [§  785. 

ble  except  on  the  hypothesis  of  the  innate  inability  of  the  mind  to 
act  out  with  perfection  any  fabricated  part — of  keeping  a  private 
diary  of  his  guilt,  and  executing  a  paper,  signed  with  his  name,  and 
carefully  put  away  among  his  vouchers,  in  which  he  expressly  de- 
clared that  guilt. 

§  785.  Richard  Crowninshield,  of  Salem,  Massachusetts,  was, 
in  1830,  a  young  man  of  good  family  and  education.  Of  ciownin- 
dark  and  reserved  deportment,  quiet  and  self-possessed,  ^^i^id's. 
he  united  a  malignity  of  heart,  which  made  crime  natural  and 
normal  to  him,  with  a  courage  of  purpose,  a  temperance  in  sensual 
indulgence,  and  a  sagacity  and  adroitness  in  the  choice  and  in  the 
use  of  means,  which  made  crime  easy.  His  tastes  and  temperance 
were  such  as  to  cover  his  tracks  with  almost  impenetrable  darkness. 
"Although  he  was  often  spoken  of  as  a  dangerous  man,  his  person 
was  known  to  few,  for  he  never  walked  the  streets  by  daylight. 
Among  his  few  associates  he  was  a  leader  and  a  despot." 

Joseph  White,  a  wealthy  merchant,  eighty-two  years  of  age,  was 
found  murdered  in  his  bed,  in  his  mansion  house,  on  the  mornino-  of 
the  7th  of  April,  1830.  His  servant  man  rose  that  morning  at  six 
o'clock,  and  on  going  down  into  the  kitchen  and  opening  the  shut- 
ters of  the  window,  saw  that  the  back  window  of  the  east  parlor 
was  open,  and  that  a  plank  was  raised  to  the  window  from  the  back 
yard  ;  he  then  went  into  the  parlor,  but  saw  no  trace  of  any  person 
having  been  there.  He  went  to  the  apartment  of  the  maid-servant, 
and  told  her,  and  then  went  into  Mr.  White's  chamber  by  its  back 
door  and  saw  that  the  door  of  his  chamber  leading  into  the  front 
entry  was  open.  On  approaching  the  bed  he  found  the  bedclothes 
turned  down,  and  Mr.  White  dead ;  his  countenance  pallid,  and  his 
night-clothes  and  bed  drenched  in  blood.  He  hastened  to  the 
neighboring  houses  to  make  known  the  event.  He  and  the  maid- 
servant were  the  only  persons  who  slept  in  the  house  that  night, 
except  Mr.  White  himself,  whose  niece  Mrs.  Beckford,  his  house- 
keeper, was  then  absent  on  a  visit  to  her  daughter,  at  Wenham. 

The  physician  and  the  coroner's  jury,  who  were  called  to  examine 
the  body,  found  on  it  thirteen  deep  stabs,  made  as  if  by  a  sharp  dirk 
or  poniard,  and  the  appearance  of  a  heavy  blow  on  the  left  temple, 
which  had  fractured  the  skull,  but  not  broken  the  skin.  The  body 
was  cold,  and  appeared  to  have  been  lifeless  many  hours.  On 
examining  the  apartments  of  the  house,  it  did  not  appear  that  any 
VOL.  I.— 44  689 


§  785.]        MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

valuable  articles  had  been  taken,  or  the  house  ransacked  for  them ; 
there  was  a  package  of  doubloons  in  an  iron  chest  in  his  chamber, 
and  costly  plate  in  other  apartments,  none  of  which  was  missing. 
The  first  clue  obtained  to  the  murder  was  by  the  arrest,  at  New 
Bedford,  of  a  man  named  Hatch,  who  stated,  when  under  examina- 
tion for  another  offence,  that  he  had  heard  Crowninshield  mutter 
intimations  of  violence  towards  Mr.  White.  Soon  another  thread 
was  found.  Mr.  White  was  childless,  and  left  as  his  legal  repre- 
sentative Mrs.  Beckford  his  housekeeper,  the  only  child  of  a  de- 
ceased sister,  and  four  nephews  and  nieces,  the  children  of  a  de- 
ceased brother.  He  had  executed,  as  was  known  in  the  family,  a 
will  by  which  he  left  by  far  the  larger  portion  of  his  estate  to 
Stephen  White,  one  of  the  few  children  of  the  testator's  brother, 
reserving  but  a  small  legacy  to  Mrs.  Beckford.  A  daughter  of  Mrs. 
Beckford  married  Joseph  J.  Knapp,  Jr.,  who  with  his  brother, 
John  Francis  Knapp,  were  young  shipmasters  of  Salem,  of  respect- 
able family,  the  sons  of  Joseph  J.  Knapp,  also  a  shipmaster. 
Shortly  after  the  murder,  the  father  received  a  letter  obscurely 
intimating  that  the  party  writing  the  letter  was  possessed  of  a 
secret  connected  with  the  murder,  for  the  preservation  of  which  he 
demanded  a  "loan"  of  three  hundred  and  fifty  dollars.  This  letter 
Mr.  Knapp  was  unable  to  comprehend,  and  handed  it  to  his  son, 
Joseph  J.  Knapp,  who  returned  it  to  him,  saying  he  might  hand  it 
to  a  vigilance  committee  which  had  been  appointed  by  the  citizens 
on  the  subject.  This  the  father  did,  and  it  led  to  the  arrest  of 
Charles  Grant,  the  person  writing  the  letter,  who,  after  some  delay, 
disclosed  the  following  facts :  He  (Grant)  had  been  an  associate 
of  R.  Crowninshield,  Jr.,  and  George  Crowninshield  ;  he  had  spent 
part  of  the  winter  at  Danvers  and  Salem,  under  the  name  of  Carr, 
part  of  which  time  he  had  been  their  guest,  concealed  in  their 
father's  house  in  Danvers ;  on  the  2d  of  April  he  saw  from  the 
windows  of  the  house  Frank  Knapp  and  a  young  man  named  Allen 
ride  up  to  the  house  ;  George  walked  away  with  Frank,  and  Richard 
with  Allen,  and  on  their  return,  George  told  Richard  that  Frank 
wished  them  to  undertake  to  kill  Mr.  White,  and  that  J.  J.  Knapp, 
Jr.,  would  pay  one  thousand  dollars  for  the  job.  They  proposed 
various  modes  of  doing  it,  and  asked  Grant  to  be  concerned,  which 
he  declined.  George  said  the  housekeeper  would  be  away  all  the 
time  ;  that  the  object  of  Joseph  J.  Knapp,  Jr.,  was  first  to  destroy 
690 


PSYCHICAL    INDICATIONS    AT    CRIME.  [§  786. 

the  will,  and  that  he  could  get  from  the  housekeeper  the  keys  of 
the  iron  chest  in  which  it  was  kept.  Frank  called  again  in  the 
same  day  in  a  chaise,  and  rode  away  with  Richard,  and,  on  the 
night  of  the  murder,  Grant  stayed  at  the  Halfway  House  in  Lynn. 
In  the  mean  time  suspicion  was  greatly  strengthened  by  Joseph  J. 
Knapp,  Jr.,  writing  a  pseudonymous  letter  to  the  vigilance  com- 
mittee, trying  to  throw  the  suspicion  on  Stephen  White.  Richard 
Crowninshield,  George  Crowninshield,  Joseph  J.  Knapp,  Jr.,  and 
John  F.  Knapp  were  arrested  and  committed  for  murder.  Richard 
Crowninshield  made  an  ineifectual  attempt,  when  in  prison,  to  influ- 
ence Grant,  who  was  in  the  cell  below,  not  to  testify,  and,  when 
this  failed,  committed  suicide.  John  F.  Knapp  was  then  convicted 
as  principal,  and  Joseph  J.  Knapp,  Jr.,  as  accessory  before  the 
fact.     George  Crowninshield  proved  an  alibi,  and  was  discharged. 

We  have  here  a  murder  coolly  planned  and  executed  by  persons 
of  consummate  skill,  and  yet  we  find  the  whole  scheme  disclosed 
by  the  following  incoherences  :  — 

(1)  Joseph  J.  Knapp,  Jr.,  instead  of  retaining  or  destroying 
Grant's  letter,  as  he  could  readily  have  done,  losing  his  presence 
of  mind  so  far  as  to  hand  it  to  his  father,  with  directions  to  give  it 
to  the  vigilance  committee. 

(2)  Crowninshield,  ordinarily  so  astute  and  reserved,  letting 
Grant,  who  was  not  even  an  accomplice,  and  who  therefore  was  not 
pledged  by  fear  to  silence,  into  the  secret. 

(3)  All  the  parties  basing  the  assassination  on  a  mistake  of  law, 
they  supposing  that  Mr.  White's  representatives,  in  case  of  his 
death  intestate,  would  take  per  stirpes,  whereas  in  fact  they  would 
take  per  capita;  so  that  actually  Mrs.  Beckford,  to  increase  whose 
estate  the  murder  was  committed,  received  no  more  by  an  intestacy 
than  she  would  have  by  the  will. 

§  786.  Shrewd  as  was  the  claimant  in  the  Tichborne  case,  there 
were  defects   in   the    case   which    he    presented  which    rpj^j^u 
made  its  breaking  down  inevitable.     These  defects  may    case. 
be  thus  enumerated:  — 

(1)  The  marks  on  his  person,  which  were  alleged  to  be  similar 
to  those  on  the  person  of  the  genuine  Roger,  were  evidently  of 
recent  creation  ;  and  so  of  marks  of  alleged  bleeding  in  the  feet, 
which,  it  was  shown,  must  have  been  made  in  imitation  of  old  ia- 

691 


§  786  a.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

cisions,  but  which  could  not  have  been  produced  in  childhood,  as 
was  contended. 

(2)  The  claimant  paraded  French  such  as  a  cockney  would  be 
likely  to  get  up  on  short  notice,  while  the  genuine  Roger  had  spent 
all  his  early  years  in  a  French  school. 

(3)  The  claimant's  efforts  to  obtain  information,  in  Australia,  of 
the  history  and  habits  of  the  genuine  heir,  were  in  themselves 
marks  of  imposture. 

(4)  The  resort,  at  the  trial,  to  the  charge  of  illicit  intercourse, 
in  order  to  break  down  Lady  Radcliffe's  testimony,  had  the  effect 
of  breaking  down  the  testimony  of  the  claimant  himself  in  one  of 
its  material  points.^ 

(5)  The  claimant's  feigning  sickness,  when  visited  by  Lady 
Tichborne,  and  refusing  to  be  seen,  except  in  a  dark  room,  showed 
an  unwillingness  on  his  part  to  submit  to  inspection. 

(6)  By  a  blunder  of  the  advertisements  which  were  published 
for  the  purpose  of  discovering  the  lost  heir,  he  was  described  as 
having  "  light  brown  hair."  This  was  one  of  the  marks  of  identity 
relied  on  by  the  claimant,  who  also  had  "  light  brown  hair."  It 
turned  out,  however,  that  the  advertisement  was  wrong,  and  that 
the  hair  of  the  genuine  heir  was  dark. 

(7)  The  theory  of  shipwreck  set  up  by  the  claimant,  in  order 
to  explain  his  arrival  at  Australia,  was  so  absurd  that  it  had  to  be 
abandoned  by  him. 

(8)  So  as  to  blunders  made  by  the  claimant  in  assuming  certain 
peculiarities  which  he  was  erroneously  informed  belonged  to  the 
lost  heir. 

(9)  And  so  as  to  his  shirking  of  all  interviews  which  would  bring 
him  into  close  proximity  with  parties  with  whom  he  had  been 
acquainted  prior  to  the  time  of  his  assuming  the  Tichborne  name. 

§  786  a.  The  exposure  of  Lefroy,  as  the  assassin  of  Mr.  Gold,  in 
Lefroy's  ^^  English  railway  carriage  in  1881,  was  due  to  one 
case.  Qjp  those  slips  which  have  been  spoken  of  as  among  the 

incidents  of  crime.  Lefroy's  object  was  to  rob  a  railway  passen- 
ger, and  to  then  cover  his  tracks  by  throwing  his  victim  out  of 
the  carriage.  In  the  English  railway  system  this  could  be  done 
by  a  strong  man,  the   victim  being  comparatively  weak,  with  the 

'  See  Morse's  Famous  Trials,  59  et  seq. 

692 


PSYCHICAL   INDICATIONS    AT    CRIME.  [§  786  CI. 

probability  that  the  criminal  could  escape  detection,  supposing  he 
was  unknown  at  the  time  to  the  railway  guards  and  to  the  ticket- 
sellers,  and  that  they  took  no  notice  of  his  entrance  into  the  par- 
ticular carriage.  Had  Lefroy  attempted  a  robbery  on  a  line  where 
he  was  entirely  unknown,  he  might  have  evaded  pursuit.  But  he 
did  not.  His  blunder  and  his  consequent  detection  are  thus  noticed 
in  the  London  Spectator  of  November  12,  1881 : — "  The  Lefroy 
case  was  commonplace  throughout.  The  explanation  which  the 
prisoner  gave  of  the  facts  passed  the  limit  which  divides  the  impro- 
bable from  the  impossible.  The  most  ingenious  invention  could  not 
possibly  have  shielded  him,  and  the  invention  to  which  he  actually 
resorted  was  not  even  ingenious.  .  .  .  It  is  true  that  the  pro- 
secution were  not  able  to  show  the  steps  by  which  the  intention  of 
murdering  Mr.  Gold  was  built  up  in  Lefroy' s  mind.  But  it  is  not 
in  the  least  necessary  to  assume  that  he  had  any  knowledge  of  Mr. 
Gold  or  his  movements  before  he  saw  him  in  the  railway  carriage 
at  London  bridge,  or  that  in  the  first  instance  he  had  even  formed 
the  idea  of  murdering  him.  It  seems  more  likely  that  he  came  to 
the  station  with  the  idea  of  committing  a  simple  robbery  on  a 
passenger,  and  that  it  was  for  this  purpose  that  he  got  into  the 
carriage  with  Mr.  Gold.  To  make  this  probable,  it  is  only  neces- 
sary to  prove  that  he  was  poor  enough  to  make  the  temptation  to 
robbery  very  great,  and  on  this  point  the  evidence  is  complete. 
He  was  at  his  wit's  end  for  money ;  he  had  pawned  nearly  every- 
thing he  had  to  pawn ;  he  had  got  the  means  of  buying  his  rail- 
way ticket  by  passing  off  two  Hanoverian  medals  as  sovereigns  in 
the  neighborhood  where  he  lived.  .  .  .  These  facts  supply  all 
the  connection  with  Mr.  Gold  that  is  needed  to  explain  Lefroy's 
acts.  He  sees  an  elderly  man  disposing  himself  to  sleep  in  a  first- 
class  carriage.  There  is  no  other  passenger  in  the  compartment, 
and  he  thinks  that  he  may  rob  him,  and  then  make  his  escape  before 
reaching  his  journey's  end.  Very  possibly  he  may  have  read  of 
some  such  incident,  either  as  a  fact  or  a  fiction,  and,  perhaps,  have 
painted  to  himself  how  he  would  set  about  doing  the  same  thing. 
At  all  events,  he  must  have  made  up  his  mind,  on  seeing  Mr.  Gold, 
to  murder  and  rob  him.  But  the  shot  designed  to  destroy  life  did  not 
even  completely  disable  him,  and  the  resistance  which  Lefroy  encoun- 
tered deranged  his  plans,  and  possibly  disturbed  his  self-control. 
The  notion  of  escaping  from  the  carriage  himself,  and  leaving  his 

693 


§  787.]        MENTAL   UNSOUNDNESS  CONSIDERED  PSYCHOLOGICALLY, 

victim  in  it,  was  abandoned — if  it  had  ever  been  entertained — possi- 
bly because  he  no  longer  had  the  nerve  to  achieve  the  dangerous  feat 
of  jumping  from  a  train  in  rapid  motion ;  possibly  because  it  was 
easier  to  complete  the  murder  by  throwing  Mr.  Gold  out  of  the 
carriage  than  in  any  other  way.  The  only  remarkable  feature  in 
the  case  is  the  rapidity  with  which  he  formed  the  plan — which  for 
a  few  hours  he  carried  out  successfully — of  attributing  the  murder 
to  a  third  person  who  had  afterwards  left  the  carriage,  unless,  in- 
deed, this  notion  was  from  the  first  included  in  his  scheme,  and  he 
intended  all  along  to  inflict  some  slight  wound  on  himself,  and  then 
inform  the  police  of  the  murder,  in  the  hope  of  throwing  them  off 
the  scent.  There  is  an  air  of  sensational  romance  about  this  plan, 
which  may  very  probably  have  had  its  attractions  for  an  excitable 
and  half-educated  man,  such  as  Lefroy  evidently  was. 

"  It  is  singular  what  a  fatal' obstacle  to  the  success  of  his  plan  the 
fact  of  his  being  known  to  be  ticket-collector  at  London  bridge 
would  have  constituted,  even  if  he  had  succeeded  in  killing  Mr. 
Gold  at  the  first  shot.  Had  there  been  no  resistance  on  Mr. 
Gold's  part,  Lefroy  probably  meant  to  throw  out  the  body  while 
the  train  was  in  a  tunnel,  and  then,  if  the  carriage  had  shown  no 
very  obvious  traces  of  the  crime  which  had  been  committed  in  it, 
he  might  have  walked  away  from  the  station  without  hindrance,  or 
even  notice.  Even  then,  however,  the  case  against  him  would  have 
been  a  strong  one.  He  would  still  have  been  knoAvn  as  the  only 
man  in  the  carriage  with  Mr.  Gold,  so  that,  with  the  omission  of 
the  incident  of  the  watch  in  his  boot,  the  evidence  would  have  been 
pretty  much  the  same  in  kind,  though  less  in  amount.  If  Lefroy 
had  not  chosen  a  line  on  which  he  happened  to  be  known,  it  is 
quite  possible  that  the  notice  taken  of  his  appearance  would  not 
have  been  sufficient  to  insure  his  identification,  and  in  that  case  he 
would  almost  certainly  have  escaped." 

2.  Self -overreaching . 

§  787.  The  Earl  of  Northampton,  the   second  son    of    Henry 

Howard,  Earl  of  Surrey,  was  the  uncle  of  Lady  Frances 

fromlx?es-    Sussex,  the  wife  first  of  the  Earl  of  Essex,  and  after- 

sivepre-        wards  of   Robert  Carr,  the  famous   Earl  of  Somerset. 

cautions. 

Private  revenge  and  state  policy  led  this  beautiful  and 
brilliant  though  bad  woman  to  desire  the  murder  of  Sir  Thomas 
694 


PSYCHICAL   INDICATIONS    AT    CRIME.  [§  787. 

Overbury,  who  opposed  her  marriage  with  her  second  husband, 
and  held  secrets  which  might,  if  disclosed,  thwart  her  political 
ambition.  She  procured  or  promoted  the  committal  of  Overbury 
to  the  Tower,  where  poison  was  administered  to  him  under  her 
direction.  In  the  attempt,  at  least,  she  had  as  accomplices,  her 
husband,  and  her  uncle,  Lord  Northampton.  The  work  was  suc- 
cessful. The  next  effort  was  to  conceal  it,  Helwysse,  the  lieuten- 
ant of  the  Tower,  was  instantly  to  advise  Lord  Northampton  of  the 
result.  This  he  did,  and  then  came  a  letter,  evidently  meant  to  be 
confidential,  from  the  earl  in  reply: — 

"  Noble  Lieutenant — If  the  knave's  body  be  foul,  bury  it 
presently.  I'll  stand  between  you  and  harm  :  but  if  it  will  abide 
the  view,  send  for  Lidcote,  and  let  him  see  it,  to  satisfy  the  damned 
crew.  When  you  come  to  me,  bring  me  this  letter  again  yourself 
with  you,  or  else  burn  it.     Northampton." 

This  was  written  early  in  the  morning.  So  great,  however,  was 
the  turmoil  in  Northampton's  mind,  lest  the  body  should  not  be  got 
out  of  sight,  that;  at  noon  on  the  same  day  he  hurries  off  the  fol- 
lowing : — 

"  Worthy  Mr.  Lieutenant — Let  me  entreat  you  to  call  Lidcote 
and  three  or  four  friends,  if  so  many  come  to  view  the  body,  if 
they  have  not  already  done  it ;  and  so  soon  as  it  is  viewed,  without 
staying  the  coming  of  a  messenger  from  the  court,  in  any  case  see 
him  interred  in  the  body  of  the  chapel  within  the  Tower  instantly. 

"  If  they  have  viewed,  then  bury  it  by  and  by  ;  for  it  is  time, 
considering  the  humors  of  the  damned  crew,  that  only  desire  means 
to  move  pity  and  raise  scandal.  Let  no  man's  instance  cause  you 
to  make  stay  in  any  case,  and  bring  me  these  letters  when  I  next 
see  you. 

"  Fail  not  a  jot  herein,  as  you  love  y'  friends  :  nor  after  Lidcote 
and  his  friends  have  viewed,  stay  one  minute,  but  let  the  priest  be 
ready  ;  and  if  Lidcote  be  not  there,  send  for  him  speedily,  pre- 
tending that  the  body  will  not  tarry." 

This  had  no  signature,  and  was  evidently  meant  for  the  eye  of 
Helwysse  alone.  But  what  would  the  world  say  if  the  proud  and 
great  Earl  of  Northampton,  the  "  wisest  among  the  noble,  and  the 
noblest  among  the  wise,"  should  seem  to  be  silent  when  officially 
informed  of  the  death  of  one  with  Avhom  he  and  Lord  Rochester 
(the  first  title  of  Somerset)  had  been  on  such  intimate  terms  ?     So 

695 


§  787  rt.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

he  writes  to  the  lieutenant  the  following  artful  letter,  meant  for  the 
public  eye  :  — 

"  Worthy  Mr.  Lieutenant — ^ly  Lord  of  Rochester,  desiring  to 
do  the  last  honor  to  his  dec'd  friend,  requires  me  to  desire  you  to 
deliver  the  body  of  Sir  T.  Overbury  to  any  friend  of  his  that 
desires  it,  to  do  him  honor  at  his  funeral.  Herein  my  Lord  de- 
clares the  constancy  of  his  affection  to  the  dead,  and  the  meaning 
that  he  had  in  my  knowledge  to  have  given  his  strongest  straine  at 
this  time  of  the  King's  being  at  Tibbald's,  for  his  delivery.  I  fear 
no  impediment  to  this  honorable  desire  of  my  Lord's  but  the  un- 
sweetness  of  the  body,  because  it  was  reputed  that  he  had  some 
issues,  and,  in  that  case,  the  keeping  of  him  above  must  needs  give 
more  offence  than  it  can  do  honor.  My  fear  is,  also,  that  the  body 
is  already  buried  upon  that  cause  whereof  I  write  ;  which  being  so, 
it  is  too  late  to  set  out  solemnity. 

"  This,  with  my  kindest  commendations,  I  ende,  and  reste 
"  Your  affectionate  and  assured  friend, 

"  H.  Northampton. 

'-  P.  S.  You  see  my  Lord's  earnest  desire,  with  my  concurring 
care,  that  all  respect  be  had  to  him  that  may  be  for  the  credit  of 
his  memory.  But  yet  I  wish,  withal,  that  you  do  very  discreetly 
inform  yourself  whether  this  grace  hath  been  afforded  formerly  to 
close  prisoners,  or  whether  you  may  grant  my  request  in  this  case, 
who  speak  out  of  the  sense  of  my  Lord's  affection,  though  I  be  a 
counsellor,  without  offence  or  prejudice.  For  I  would  be  loth  to 
draw  either  you  or  myself  into  censure,  now  I  have  well  thought  of 
the  matter,  though  it  be  a  work  of  charity."^ 

Unfortunately  for  the  success  of  the  plot,  both  sets  of  letters 
were  preserved  ;  and  their  inconsistency  formed  one  of  the  chief 
presumptions  in  the  remarkable  trials  that  ensued. 

§  787  a.  Insurance  of  the  life  of  a  person  with  whom  the  party 

insuring  has  no  tie  of  blood  or  of  common  interest  is  an 

aticVonvic-    ^^^  which,  coupled  with  a  subsequent  homicide,  naturally 

tiiii  as  a        attracts  suspicion.     It  is  true  that  there  are    cases   in 
coQiession.  -^  , 

which    one  man  may   insure   another's    life    merely  for 

speculative  purposes  ;  and  it  is  true,  also,  that  men   often  insure 

the  lives  of  those  to  whom  they  ai'e  much  attached,  and  whose 

•  Amos's  Great  Oyer,  173,  etc. 

696 


PSYCHICAL    INDICATIONS    AT    CRIME.  [§  787  ft. 

health  they  cherish  as  they  woukl  their  own.  Is  is  impossible, 
however,  in  view  of  many  recent  trials,  to  overlook  two  important 
facts.  One  is,  that  the  prevalence  of  life  insurance  opens  the  way 
to  a  new  line  of  crimes.  The  second  is,  that  in  opening  the  way, 
it  points  to  the  probable  criminal.  Two  of  the  most  extraordinary 
cases  of  this  class  are  those  of  Goss,  Avho  was  murdered  near 
West  Chester,  Pennsylvania,  in  1873,  and  of  Armstrong,  who  was 
murdered  in  Camden,  New  Jersey,  in  1878,  the  murderer  in 
each  case  having  an  insurance  on  the  life  of  the  victim.  A  re- 
markable illustration  of  the  same  principle  is  to  be  found  in  the 
trial  of  Paine,  in  London,  1880,  for  the  killing  of  Miss  Maclean. 
"To  understand,"  said  the  London  Times,  of  February  27,  1880, 
"  the  motives  at  work  and  the  exact  position  of  Paine  and  Miss 
Maclean  before  her  death,  it  was  essential  that  the  jury  should  have 
present  to  them  the  whole  history  of  their  relations,  and  this  obliged 
the  crown  to  call  many  witnesses.  We  have,  at  all  events,  the 
satisfaction  of  knowing  that  the  verdict  of  guilty  has  been  arrived 
at  after  an  exhaustive  inquiry.  It  is  not  an  insignificant  fact  that 
Miss  Maclean  was  of  very  small  stature,  that  she  suffered  from 
spinal  deformity,  and  that  she  Avas  lame.  Her  father,  Lieutenant- 
Colonel  Maclean,  died  several  years  ago  ;  and  for  some  time  after 
his  death  she  lived  with  her  mother  in  London.  Just  as  the  mother 
and  daughter  were  about  to  take  up  their  residence  in  a  house 
called  the  Shrubbery,  at  the  village  of  Broadway,  in  Worcester- 
shire, the  former  died.  The  daughter  then  became  entitled  to  some 
property,  including  gas  shares  and  an  interest  in  a  house  at  East- 
bourne-terrace. Miss  Maclean  went  after  a  short  time  to  live  at  the 
Shrubbery,  and  she  was  joined  there  by  Paine.  Their  acquaint- 
ance dated  from  before  the  mother's  death.  He  had  visited  occa- 
sionally at  the  house  in  the  mother's  lifetime,  and  had,  it  is  to  be 
feared,  led  the  daughter  into  bad  habits.  After  the  death  of  the 
former,  he  renewed  his  acquaintance  ;  he  managed  to  gain  her 
affections  ;  and  in  the  month  of  July  they  were  living  together  and 
passing  as  husband  and  wife  at  the  Shrubbery.    With  the  exception 

»  Udderzookw.  Com.,  App.  to  Whar.         Hunter  v.  State,  40  N.  J.  L.  §  495  ; 
on  Horn.  ;  76  Penn.  St.  348,  discussed  in     discussed  in  Wli.  Cr.  Ev.  §§  262-3. 
Wh.  Cr.  Ev.  §§  340,  353,  544,  778,  788, 
805,  819. 

697 


§  787  a.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

of  a  visit  to  London  for  ten  days,  they  resided  in  Worcestershire 
until  the  journey  which  was  to  be  Miss  Maclean's  last.  There  can 
be  litttle  doubt  that  she  drank  far  too  much,  and  that  her  weakness 
had  revealed  itself  even  before  she  went  to  live  with  Paine.  He 
was  dissipated  and  often  intoxicated,  and  in  his  company  her  habits 
of  intemperance  grew  to  a  degree  which  enfeebled  her  health. 
Whether  he  at  first  tempted  her  to  indulge  this  passion  is  unknown; 
but  it  is  clear  that  he  took  no  pains  to  prevent  her  drinking  to  ex- 
cess, and  the  amount  of  alcohol  consumed  during  their  first  visit  to 
London  sounds  incredible.  Her  brother,  who  supposed  that  Paine 
was  going  to  marry  her,  and  who  did  not  know  that  he  had  a  wife 
living,  naturally  wished  her  to  make  a  settlement  of  her  property 
which  would  protect  her  against  Paine  ;  but  this  did  not  recommend 
itself  to  him  and  Miss  Maclean.  They  preferred  to  make  wills  in 
favor  of  each  other,  she  leaving  him  all  her  property,  and  he  leaving 
her  all  his  property,  which  was  nothing.  Still  more  significant  was 
the  fact  that  Miss  Maclean  executed,  in  October,  a  deed  of  gift 
transferring  all  her  property  to  Paine.  The  result  of  this  trans- 
action was  to  strip  her  of  all  that  she  possessed.  It  is  also  not 
unimportant,  in  an  inquiry  as  to  what  was  in  Paine's  contemplation, 
to  note  that  about  the  time  that  this  deed  of  gift  was  being  prepared 
Paine  tried,  though  unsuccessfully  to  effect  an  insurance  for  <£250 
on  the  life  of  Miss  Maclean.  The  chief  witness  as  to  their  life  at 
Worcester,  in  September  and  October,  was  Fanny  Matthews — a 
suspected  witness,  no  doubt — and  her  testimony,  if  true,  showed 
that  at  a  time  when  Miss  Maclean  was  ill  Pain  had  pressed  neat 
spirits  upon  her  and  poured  them  down  her  throat.  It  is  fortified, 
too,  by  the  evidence  of  Mrs.  Porter  who  lived  next  door  to  the 
Shrubbery.  According  to  her  account.  Miss  Maclean,  while  ad- 
mitting that  she  had  drunk  a  bottle  of  brandy  in  a  day,  said,  '  He 
forced  me  to  drink  it ;  he  makes  me  drink  it.'  Why,  it  was  asked 
by  Mr.  Serjeant  Ballantine,  with  reference  to  this  part  of  the  case, 
did  not  the  prisoner,  if  his  intentions  were  criminal,  make  away 
with  her  as  soon  as  a  will  was  made  in  his  favor  ?  This  is  a  perti- 
nent and  plausible  question.  The  objection  is,  however,  partly 
explained  away  by  the  wayward,  vacillating  temper  of  Paine,  who 
was  too  often  tipsy  and  bemuddled  to  be  capable  of  deep,  consecu- 
tive designs.  The  question  might  be  further  answered  if  the  exact 
date  of  the  attempt  to  insure  Miss  Maclean's  life  Avere  known ;  and 
698 


PSYCHICAL   INDICATIONS   AT    CRIME.  [§  787a. 

it  is  partially  answered  by  the  fact,  that  during  September,  Paine 
was  arranging  about  the  deed  of  gift,  which  would  vest  at  once  in 
him  what  he  desired.     All  this  early  history  was  relevant  only  so 
far    as  it  threw  light  on  the  journey  to  London,  on  the  3d  of 
November,  and  what  took  place  while  Miss  Maclean,  the  prisoner, 
and  Fanny  Matthews  lived  at  the  coifee-shop  kept  by  the'Powells,  in 
Seymour  place.     Indeed,  the  guilt  of  the  prisoner  was  mainly,  if 
not  exclusively,  to  be  determined  by  what  Paine  did  during  a  few 
days  before  Miss  Maclean's  death.     She  was  brought  to  London 
very  ill  or  intoxicated,  or  both.     The  description  of  her  miserable 
state  as  she  was  carried  up  stairs  at  Seymour  place  recalls  the 
story,  as  told  in  a  somewhat  similar  inquiry,  of  the  death  of  Mrs. 
Staunton  at  Penge.     According  to  the  prisoner's  story,  he  took  her 
to  London  in  order  to  obtain  medical  advice.     But,  whatever  were 
his  motives,  he  acted,  to  say  the  least,  with  cruelty  and  culpable 
negligence.      Mrs.    Powell  and  Fanny  Matthews,  the    two    chief 
witnesses  who  spoke  as  to  what  took  place  after  the  3d  of  Novem- 
ber, did  not  agree  as  to  all  points  ;  and  it  was  open  to  Serjeant 
Ballantine  to  argue  that  as  the  Powells  had  quarrelled  with  Paine, 
their  evidence  against  him  was  unworthy  of  credit.     But  enough 
remained,   after  making  all  due  allowance  for  discrepancies  and 
exaggerations,  to  convict  him  of  gross  guilt.     Unless  Fanny  Mat- 
thews, Mrs.  Powell,  and  the  nurse  were  in  a  league   of  perjury 
against  him,  he  had  failed  in  every  duty  towards  one  with  respect 
to  whom  he  had  contracted  obligations  recognized  by  the  criminal 
law  as  well  as  morality.     Liquor  was  forced  upon  her  while  she 
was  feeble  and  ill.     She  was  '  dosed'  or  '  crammed'  with  alcohol. 
At  a  time  when  Paine  was  well  aware  that  abstinence  from  stimu- 
lants was  imperative,  he  plied  her,  contrary  to  the  doctor's  orders, 
with  raw  spirits.     He  took  no  steps  to  inform  her  relatives  of  her 
dangerous  state.     His  sole  desire  appeared  to  be  that  few  people 
should  see  her  ;  that  she  should  sign  nothing  ;  and  that  brandy  and 
gin  should  be  constantly  within  her  reach.       The  motive  for  the 
crime  lay  on  the  surface.     In  November,  Paine  had  secured  all  the 
property  ;  and  his  marriage,  to  say  nothing  of  his  intrigue  with 
Fanny  Matthews,  sufficiently  accounted  for  a  desire  to  get  rid  of 
Miss  Maclean.     The  difficulty  under  which  the  prosecution  labored 
was  in  showing  that  Paine's  misconduct,  though  morally  heinous, 
fell  within  the  purview  of  the  criminal  law.     It  is  not  a  crime  to 

699 


§  787  «.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

stand  by  unconcerned  while  a  person  injures  himself  by  drinking 
too  much  alcohol.  Xor  is  it  a  crime  for  a  stranger  to  be  callous 
and  indifferent  towards  a  person  who  needs  care  and  solicitude. 
Fanny  Matthews  had  not  engaged  to  provide  food  for  Miss  Maclean  ; 
her  conduct  was  no  crime;  and  the  attorney-general  had  no  choice 
but  to  withdraw  the  case  against  her.  The  same  difficulty  applied 
in  some  degree  to  the  charcje  against  Paine.  It  w"as  difficult  to 
prove  that  excessive  stimulants  had  been  administered  by  him  with 
the  deliberate  intention  of  accelerating  death  :  and  nothing  less 
would  warrant  a  verdict  of  murder.  He  could  not  be  found  guilty 
of  manslaughter  without  showing  that  he  had  grossly  failed  in  some 
legal  duty  towards  one  who  was  not  his  wife,  and  who  was  of 
mature  age  and  average  intelligence.  What  was  that  duty  ?  It 
did  not  arise  out  of  any  contract ;  it  was  not  exactly  the  same  as 
the  duty  of  a  father  to  a  child.  It  was  a  duty  which  the  law  im- 
poses whenever  any  one  assumes  the  control  of  one  who  is  depend- 
ent and  helpless — an  obligation  of  an  ill-defined  character  created 
for  the  protection  of  the  weak  who  are  at  the  mercy  of  the  strong. 
No  one  will  deny  that  Miss  Maclean  had  fallen  wholly  under  the 
control  of  Paine,  whom  she  seems  to  have  at  once  loved  and  feared; 
and  a  jury  have  found,  on  good  grounds,  that  he  grossly  abused  his 
position  and  cruelly  failed  in  the  duty  which  he  had  undertaken." 

In  the  address  of  Hawkins,  J.,  to  the  prisoner,  after  conviction, 
the  motives  prompting  to  the  homicide  are  thus  pointedly  exposed:  — 

"You  knew  well  enough  at  the  time  that  you  could  do  no  such 
thing,  as  you  were  already  married,  and  you  were  in  friendly  com- 
munication with  your  wife.  I  do  not  believe,  as  you  say,  that 
there  was  any  ill-feeling  between  Mrs.  "Wilson  and  the  deceased  ; 
but  what  I  do  believe  is  that  the  mother  being  dead  and  the  brother 
having  gone  abroad,  you,  knowing  that  this  poor  girl  had  property, 
kept  her  from  her  aunt  and  every  other  soul  who  was  interested  in 
her.  No  sooner  had  you  gone  to  Broadway  after  you  had  isolated 
this  poor  creature  from  her  friends  than  you  made  your  w^ay  over 
to  Worcester,  where  you  had  made  for  her  a  will  bequeathing  to 
you  every  farthing  she  possessed.  You  then  tried  to  get  her  life 
insured  in  the  Gresham  Office  for  ,£250,  and  if  that  proposal  had 
been  accepted,  it  would  have  been  j£250  more  in  your  favor  in  the 
event  of  her  death.  Then  you  tell  me  that  all  this  was  done  for 
the  purpose  of  satisfying  her.  You  really  must  think  people  very 
700 


PSYCHICAL   INDICATIONS    AT    CRIME.  [§  787a. 

credulous  indeed.  I  confess,  for  my  own  part,  I  believe  not  one 
word  you  have  said  in  that  respect.  I  cannot  search  your  mind.  I 
can  only  infer  what  you  thought  from  what  you  did.  Something 
occurred  to  you  which  led  you  to  write  to  Mr.  Goldingham,  asking 
him  to  prepare  the  deed  of  gift,  which  you  no  doubt  thought  would 
be  more  secure  for  you,  as  a  will  is  not  always  secure — it  might  be 
impeached  on  the  ground  of  undue  influence.  You  got  this  deed  of 
gift  prepared,  and  got  her  to  execute  it.  At  that  time  she  seems 
to  have  been  in  perfect  health,  as  there  is  not  a  single  witness  who 
speaks  to  her  health  having  been  failing  before  that  time,  although 
it  was  said  that  she  was  fond  of  drinking  and  given  to  taking  more 
than  was  good  for  her.  She,  however,  suffered  little  from  that, 
and  was  always  cheerful  and  happy,  and  appeared  to  be  attached 
to  you.  You  appeared  to  be  attached  to  her,  and  you  made  use  of 
expressions  when  at  the  insurance  agent's  which  led  him  to  believe 
that  you  were  a  little  too  affectionate.  Possibly  you  thought  that 
a  great  deal  of  affection  shown  at  that  time  would  the  more  readily 
induce  her  to  sign  more  documents  to  put  her  property  into  your 
hands  at  a  time  when  she  had  no  friends  and  no  advisers — her 
mother  dead  and  her  brother  gone." 

"  You  have  spoken  of  your  kindness  and  attachment  to  her. 
How  did  you  show  it  on  the  first  night?  You  left  her  alone.  How 
did  you  show  it  the  next  night  ?  Why,  by  taking  from  the  house 
her  only  attendant,  and  from  that  time  you  and  Fanny  Matthews 
lived  together  as  man  and  wife.  Then  you  wanted  to  make  believe 
that  this  poor  creature  had  gone  to  Brighton  with  you.  I  cannot 
dwell  with  moderation  upon  your  inhuman  conduct.  I  can  conceive 
nothing  more  atrocious  than  the  exclamation  you  made  on  the  last 
morning  on  which  that  poor  creature  saw  the  light  of  day — to  her 
you  said  it  was  a  sin  to  preserve  such  a  life.  Under  these  circum- 
stances what  ought  I  do  with  you,  who  have,  in  my  judgment,  been 
guilty  of  a  crime  next  in  enormity  to  the  crime  of  murder.  Had 
you  been  guilty  of  murder,  most  unquestionably  you  would  have 
been  hanged,  as  you  richly  deserve  to  be.  As  it  is,  I  have  the 
power  to  pass  upon  you  the  next  sentence  in  severity  to  that  of 
death,  and  that  sentence  I  think  it  my  duty  to  pronounce.  For 
the  atrocious  crime  of  which  you  have  been  convicted,  I  condemn 
you  to  be  kept  in  penal  servitude  for  the  term  of  your  natural  life." 

701 


§  789.]      MENTAL    UNSOUNDNESS    CONSIDERED   PSTCHOLOGIGALLY. 
III.    AFTER  CRIME.^ 

1,    Convulsive  confessions. 

§  788.  "  The  guilty  soul,"  said  Mr.  Webster,  in  a  speech  already 
quoted,  "  cannot  keep  its  own  secret.  It  is  false  to  itself; 
sions  may  or  rather  it  feels  an  irresistible  impulse  of  conscience  to 
be  instruc-  -^^  ^^.^^  ^^  itself.  It  labors  under  its  guilty  possession, 
and  knows  not  what  to  do  with  it.  The  human  heart 
was  not  made  for  the  residence  of  such  an  inhabitant.  It  finds  itself 
preyed  on  by  a  torment,  which  it  dares  not  acknowledge  to  God  or 
man.  A  vulture  is  devouring  it,  and  it  can  ask  no  sympathy  or 
assistance,  either  from  heaven  or  earth.  The  secret  which  the 
murderer  possesses  soon  comes  to  possess  him  ;  and,  like  the  evil 
spirits  of  which  we  read,  it  overcomes  him,  and  leads  him  whither- 
soever it  will.  He  feels  it  beating  at  his  heart,  rising  to  his 
throat,  and  demanding  disclosure.  He  thinks  the  whole  world  sees 
it  in  his  face,  reads  it  in  his  eyes,  and  almost  hears  its  workings  in 
the  very  silence  of  his  thoughts.  It  has  become  his  master.  It 
betrays  his  discretion,  it  breaks  down  his  courage,  it  conquers  his 
prudence.  When  suspicions  from  without  begin  to  embarrass  him, 
and  the  net  of  circumstance  to  entangle  him,  the  fatal  secret  strug- 
gles with  still  greater  violence  to  burst  forth.  It  must  be  confessed, 
it  will  be  confessed  ;  there  is  no  refuge  from  confession  but  suicide, 
and  suicide  is  confession." 

Confessions  that  are  voluntary  are  out  of  the  range  of  the  present 
discussion.  Of  those  that  are  involuntary  or  convulsive  we  may 
take  the  following  illustrations  : — 

§  789.  A  confession  by  an  insane  person  is  entitled  to  no  weight.^ 
.  It  may  happen,  however,  that  a  reliable  confession  may 
delirium  or  be  made  during  a  lucid  interval,  or  that  true  statements 
made  during  delirium  may  be  corroborated  aliunde. 
John  Whitney,  a  wealthy  farmer  of  Loudonville,  Ohio,  was  robbed 
and  murdered  in  November,  1856.  Great  but  unsuccessful  eft'orts 
were  made  to  ferret  out  the  murderer.  A  man  named  Stringfeilow, 
who  was  living  at  Loudonville  at  the  time,  was  strongly  suspected 

'  This  topic  is  discussed  in  its  tech.-        *  See  Wh.  on   Cr.    Ev.    Sth   ed.   §§ 
nical  relations  in  Wh.  Cr.  Ev.  Sth  ed.     632  et  seq. 
§§  628  et  seq. 

702 


PSYCHICAL   INDICATIONS    AFTER    CRIME.  [§  789. 

of  the  crime,  but  nothing  could  be  fastened  upon  him.  Stringfellow 
soon  afterwards  left  the  neighborhood,  and,  after  an  absence  of  two 
years,  settled  in  the  village  of  Johnstown,  Hardin  County.  Here 
he  was  taken  sick,  and  in  his  illness  became  delirious.  It  would 
seem  that  conscience  was  constantly  at  work  within  him,  'for  during 
his  delirium  he  mentioned  Whitney's  name  frequently,  and  divulged 
a  number  of  secrets  which  had  been  long  hidden  in  his  bosom,  and 
which  left  but  little  doubt  that  he  was  the  guilty  man.  The  clue 
having  been  obtained,  facts  were  elicited  which  established  his 
guilt. 

The  fact  that  a  confession  was  made  during  sleep  excludes  it  ;^ 
but  it  may  nevertheless  be  the  means  of  drawing  out  facts  on  which 
a  conviction  may  rest.  A  person  who  worked  in  a  brewery  at 
Basle,  in  Switzerland,  quarrelled  with  a  fellow-workman,  and  struck 
him  in  such  a  manner  as  to  produce  instant  death.  He  then  took 
the  dead  body  and  threw  it  into  a  large  fire  under  the  boiling  vat, 
where  it  was  in  a  short  time  so  completely  consumed  that  no  traces 
of  its  existence  remained.  On  the  following  day,  when  the  man  was 
missed,  the  murderer  observed  that  he  had  seen  his  fellow-servant 
intoxicated,  and  that  he  had  probably  been  drowned  in  crossing  a 
bridge  which  lay  on  his  way  home.  For  seven  years  after  no  one 
entertained  any  suspicion  as  to  the  real  state  of  the  case.  At  the 
end  of  this  time,  the  murderer,  being  again  employed  in  the  same 
brewery,  was  constantly  reflecting  on  the  singularity  of  the  circum- 
stance that  his  crime  had  been  so  long  concealed.  One  night  one 
of  his  fellow-workmen,  who  slept  with  him,  hearing  him  say  in  his 
sleep,  "  It  is  now  fully  seven  years  ago,"  asked  him,  "  What  was  it 
you  did  seven  years  ago  ?"  "  I  put  him,"  he  replied,  still  speak- 
ing in  his  sleep,  "  under  the  boiling  vat."  As  the  affair  was  not 
entirely  forgotten,  the  man,  suspecting  tliat  his  bed-fellow  might 
allude  to  the  person  who  was  missed  about  that  time,  informed  a 
magistrate  of  what  he  had  heard.  The  murderer  was  apprehended, 
and,  though  at  first  denying  all  knowledge  of  the  matter,  afterwards 
confessed  and  was  executed.  An  analogous  case  is  reported  by 
Abercrombie  as  having  occurred  in  Scotland  early  in  the  present 
century.  A  peddler  had  disappeared  under  circumstances  which 
made  it  probable  that  he  had  been  murdered.     All  attempts  to  dis- 

'  Wh.  Cr.  Ev.  8th  ed.  §   676. 

703 


§  789.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

cover  the  assassin  failed.  At  last  a  wayfaring  man,  -who  had  been 
strolling  about  the  neighborhood,  dreamed  that  the  body  would  be 
found  in  a  particular  spot,  and  that  certain  persons  with  whom  he 
had  lately  been  sleeping  in  a  barn  were  the  guilty  parties.  It 
turned  out  that  this  was  true.  But  it  also  turned  out  that  the 
dreamer  had,  in  his  own  dreams,  heard  the  convulsive  confessions 
of  ODe  of  the  assassins,  the  latter  also  dreaming.^ 


1  In  Mr.  Noak's  speech,  in  Lowen- 
stein's  case  (Albany,  1874)  we  have  the 
following  : — 

"  The  truth  is  the  conscience  of  the 
murderer  is  never  silent.  On  one  oc- 
casion lie  may  be  compelled,  in  order 
to  restrain  and  stifle  the  stings  of  con- 
science, to  resort  to  apparent  ease  and 
forced  gayety,  and  in  another  he  may 
not  be  able  to  throw  off  that  spectre 
that  haunts  him  ever  after  committing 
such  a  crime.  To  refer  to  a  well- 
authenticated  case  that  occurred  in 
this  city  within  the  last  thirty  years. 
It  is  the  case  of  the  celebrated  Euglish 
forger,  Cliarles  Webb.  I  refer  to  it  to 
show  how  certain  the  criminal  is,  to 
himself  furnish  the  proof  which  leads 
to  his  detection,  and  which  points  to 
him  as  the  criminal.  On  the  28th  of 
November,  1847,  a  man  presented  at  a 
bank  in  this  city,  of  which  Mr.  A.  P. 
Palmer  was  cashier,  a  check  purport- 
ing to  have  been  drawn  by  Tweddle  & 
Darlington  for  $805,  and  received  the 
money  upon  it.  It  was  paid  to  him  in 
$10  bills  of  a  new  issue.  Within  a 
short  time  after  he  left  the  bank  it  was 
discovered  that  the  check  was  a  for- 
gery. Immediately  on  this  discovery 
the  bank  cancelled  all  the  bills  of  that 
issue  and  destroyed  the  plates,  believ- 
ing that  if  they  were  out  the  forger 
would  be  unable  to  pass  them,  or  that 
they  would  lead  to  his  detection.  A 
few  of  them  came  in — one  came  from 
Ballston  and  one  from  Saratoga — but 
in  each  case  the  number  had  been 
burned  out,  showing  that  the  person 

704 


who  committed  the  forgery  was  aware 
that  the  bank  had  destroyed  all  simi- 
lar bills,  and  that  if  the  numbers  re- 
mained they  might  lead  to  his  identi- 
fication. About  a  year  from  that  time 
a  man  presented  himself  at  Dixon's  hat 
store  in  this  city  and  purchased  a  hat. 
After  he  had  purchased  it  he  said  to 
Mr.  Dixon,  '  I  don't  know  as  you  will 
take  my  money.'  This  remark  caused 
Mr.  Dixon  to  think  there  was  some- 
thing wrong  about  the  money.  It  was 
a  bill  on  a  bank  in  his  own  city,  and 
it  appeared  to  be  genuine,  but  the 
simple  remark  made  by  his  customer 
made  him  think  there  was  something 
wrong ;  so  he  sent  a  boy  to  George  E. 
Payne,  a  broker,  to  see  if  the  bill  was 
genuine.  Mr.  Payne  at  once  saw  it 
was  one  of  the  bills  that  had  been  ob- 
tained upon  the  forged  check,  and 
walked  over  to  Mr.  Dixon's  store  to  see 
the  man  who  presented  the  bill.  Webb, 
who  went  by  a  fictitious  name,  suspect- 
ing something  was  wrong,  went  out  of 
the  store  and  walked  up  State  Street. 
He  was  speedily  overtaken  and  ar- 
rested, and  was  soon  afterwards  in- 
dicted. While  in  the  jail  he  gave  the 
sheriff  the  key  of  a  trunk  which  he 
said  he  had  at  Troy,  and  asked  the 
sheriff  to  get  it  for  him,  not  for  a  mo- 
ment supposing  that  he  would  open 
the  trunk  to  see  what  it  contained. 
But  the  sheriff  having  the  key  did  so, 
and  in  it  were  seven  hundred  dollars 
of  the  stolen  bills,  with  the  dates 
burned  out.  He  was  convicted,  and  it 
turned  out  our  police  had  captured  the 


PSYCHICAL   INDICATIONS    AFTER   CRIME. 


[§  790. 


§  790.  Confessions  may  also,  with  hardened  criminals,  become 

in  a  deo-ree  involuntary  from  the  fact  that  crimes  which    ^ 

o  "^  _  _  _  From  eal- 

have  been  frequently  committed  become  so  familiar  to    lousness. 


celebrated  forger,  Charles  Webb,  of 
England.  It  was  a  simple  remark, 
and  one  would  have  thought  he  would 
never  have  made  it. 

"  I  remember  the  case  of  Gordon,  and 
so  do  many  of  yon,  who  was  tried  for 
the  murder  of  a  man  named  Owen 
Thompson,  at  West  Albany,  a  short 
distance  only  from  where  this  murder 
was  committed.  A  drover  in  that  case 
was  murdered  for  a  few  hundred  dol- 
lars. No  one  saw  it  done.  In  the 
morning  the  poor  man  was  found  hang- 
ing on  to  a  fence  with  his  skull  crushed 
in  by  a  blow  with  a  piece  of  wood  used 
for  binding  bales  of  hay.  The  day 
previous,  at  West  Albany,  the  sup- 
posed murderer  had  had  a  conversation 
with  a  man  named  Grenter.  During 
the  conversation  he  said  to  Genter, 
*  Haven't  I  seen  you  somewhere  behind 
a  bar  ?'  It  was  a  simple  remark,  and 
of  no  consequence  or  significance  then 
to  Genter.  The  murderer  went  on  to 
Rochester.  Chief  Maloy  went  to  Ro- 
chester, where  a  state  fair  was  being 
held,  with  a  man  who  claimed  he 
could  identify  the  man  who  was  last 
seen  with  Thompson.  Gordon  passed 
within  a  few  feet  of  them.  Strange  to 
say,  Maloy's  companion  never  said  a 
word  about  it,  in  consequence  of  tlie 
superstition  some  people  have  against 
being  considered  informers.  Time  went 
on.  Gordon  went  to  Saratoga  and  pur- 
chased a  span  of  horses,  and  the  vaga- 
bond of  a  short  time  previous  was  now 
driving  a  spirited  team.  The  same 
Providence  which  prompted  the  remark 
by  Gordon  to  Genter  the  day  previous 
to  the  murder,  set  him  down  in  the 
same  car  with  him,  one  seat  in  front  of 
Genter.  The  same  train  of  ideas  were 
in  his  mind  on  this  occasion  as  on  the 

VOL.  I. — 45 


day  previous  to  the  cruel  murder. 
Looking  at  Genter  and  scrutinizing 
him,  again  he  said  :  '  Haven't  I  seen 
you  somewhere  behind  a  bar  ?'  Genter 
at  once  remembered  hearing  the  re- 
mark before,  and  that  he  was  the  man 
who  was  suspected  of  having  murdered 
Thompson.  At  the  next  station  he 
telegraphed  to  the  chief  of  police  in 
this  city,  and  detained  Gordon  at 
Schenectady  until  the  chief  came  there. 
He  was  placed  under  arrest,  and,  when 
it  was  found  that  it  was  Gordon,  Maloy 
was  laughed  at  for  the  blunder.  But 
the  train  of  circumstances  pointed  to 
him  with  certainty,  and  he  was  in- 
dicted, tried,  and  convicted,  and  but 
for  the  action  of  a  single  juror  he 
would  have  been  hanged.  As  it  was, 
he  was  committed  to  state  prison  for. 
life,  and  that  juror,  who  lived  in 
Schoharie  County,  has  never  got  over 
the  public  odium  which  attached  to 
his  course  upon  the  trial.  It  was  a 
simple  remark,  '  Haven't  I  seen  you 
somewhere  behind  a  bar  ?'  but  it 
pointed  to  Gordon,  who  talked  with 
Genter  the  afternoon  before  Thompson 
was  murdered,  as  certainly  as  the  fact 
that  you  and  I  are  here  now  trying 
this  case." 

In  Burrill's  Cir.  Ev.,  pp.  673-76,  is 
the  following  : — 

"  In  crimes  of  a  comparatively  petty 
character,  the  same  singular  disregard 
of  relations  and  consequences  is  some- 
times found  to  take  place.  Thieves 
and  receivers  of  stolen  goods  have  been 
known  to  keep  the  stolen  articles  in 
their  possession  with  the  owner's 
marks  still  apparent  upon  them,  thus 
furnishing  a  means  of  immediate  iden- 
tification and  detection. 

"  The    causes   of   this    singular    and 

705 


§  790.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

the  criminal  himself  as  to  seem  every-day  occurrences,  which  he 
recurs  to  as  naturally  as  a  farmer  to  his  ploughing  and  sowing, 


sometimes  sudden  blindness  to  tlie 
criminal's  immediate  and  obvious  in- 
terest in  the  case,  and  this  disregard 
of  what  may  be  called  the  necessary 
policy  of  his  conduct,  may  now  be 
more  particularly  examined.  The 
circumstance  of  creating  evidence 
against  himself,  in  the  way  of  omission 
(that  is,  by  omitting  to  destroy  the 
impressions  and  vestiges  of  his  own 
action),  sometimes  arises  from  the  self- 
imposed  necessity  of  the  case.  In  enter- 
ing upon  the  actual  perpetration  of  a 
great  crime,  the  criminal  commits  him- 
self to  the  issues  of  events  which  he 
can  neither  foresee  nor  perfectly  con- 
trol. With  the  best  contrived  plan  of 
proceeding,  and  the  best  adapted  means 
of  action,  he  often  encounters,  and 
sometimes  at  almost  every  step,  difS.- 
culties  and  obstacles,  against  which  no 
provision  (or  no  effectual  one)  could  be 
made.  A  trifling  -accident  may  serve 
to  endanger  the  whole  enterprise.  The 
premises  sought  to  be  invaded  are 
found  to  be  secured  with  unusual  care  : 
the  intended  victim  takes  the  alarm, 
and  makes  a  long  and  desperate  resist- 
ance, with  cries  of  distress  which  vio- 
lence cannot  wholly  stifle.  To  deal  the 
mortal  blow  and  escape  for  his  life  is 
sometimes  all  the  murderer  can  do. 
He  has  no  time  for  acts  of  concealment 
which  often  take  whole  days  and  nights 
to  perform  adequately.  Again,  this 
omission  or  neglect  to  conceal  the  traces 
and  evidences  of  criminal  action,  even 
when  present  to  the  actor's  view  and 
within  his  reach  and  control,  may  be 
attributed  to  that  cnnfusion  of  mind  and 
memory,  which,  particularly  in  cases 
of  inexperienced  ofi'enders,  is  often 
found  to  attend  the  commission  of  great 
crimes,  and  occasionally  wholly  frus- 
trates their  accomplishment.  The  mur- 

706 


derer  forgets  that  his  feet  are  making 
the  impressions  which  are  to  lead  to 
his  discovery.  The  thief  forgets  to 
erase  from  the  article  which  he  has 
stolen  the  owner's  marks  ;  or  he  trusts 
to  superficial  appearances  without 
making  thorough  examination.  He 
keeps  the  stolen  l)ox  in  his  possession, 
till  it  is  there  found,  without  thinking 
of  looking  on  the  bottom,  where  the 
evidences  of  ownership  are  distinctly 
written.  Lastly,  supposing  greater 
coolness  and  circumspection  to  be  ob- 
served in  the  ciiminal  act,  the  same 
circumstance  of  omission  may  be 
ascribed  to  an  excess  of  confidence  on 
the  part  of  the  ofi'ender,  in  his  own  in- 
tended after-conduct,  and  in  his  pur- 
pose and  plan  of  subsequent  destruction 
or  concealment  of  the  evidence  of  guilt, 
or  of  the  concealment  of  his  own  per- 
son, or  final  escajDe  from  danger  by 
flight.  All  such  explanations,  how- 
ever, fail  to  take  fi'om  these  acts  of 
omission  their  character  of  intrinsic 
and  manifest  folly.  But  it  is  in  those 
cases  where  the  criminal,  having  effect- 
ually perpetrated  the  crime  and  escaped 
discovery,  deliberately  creates  with  his 
own  hand  the  strongest  evidence  of  it, 
and  puts  it,  as  it  were,  upon  record, 
that  this  feature  of  folly  is  found  to 
reach  the  height  of  absolute  infatua- 
tion, having  almost  the  quality  of 
mental  imbecility,  though  without  any 
of  its  exculpatory  claims  or  conse- 
quences. 

"The  folly,  therefore  (even  to  a 
glaring  degree),  of  particular  acts  on 
the  part  of  a  person  accused  of  crime 
is  by  no  means  ah  unanswerable  proof 
of  their  not  having  been  committed  by 
him,  or,  if  committed,  of  having  been 
the  result  of  irresponsible  agency. 
They  are  parts  of  a  condition  of  human 


PSYCHICAL   INDICATIONS    AFTER   CRIME. 


[§  790. 


or  a  merchant  to  his  sales.  As  illustrating  this  principle  may  be 
considered  the  case  of  Mrs.  Lydia  Sherman,  of  New  Haven,  Con- 
necticut, as  reported  in  the  New  York  Herald  for  January  13th, 
1878.  The  technical  questions  arising  in  this  extraordinary  case 
are  noticed  by  me  in  another  work.^  Mrs.  Sherman,  after  her  con- 
viction, confessed,  according  to  a  subsequent  summary  in  the  Lon- 
don Spectator,  in  full  to  eight  murders  by  arsenical  poisoning ;  the 
victims  being  her  first  husband,  Mr.  Struck,  a  carriage  blacksmith, 
and  afterwards  a  policeman  ;  four  of  her  own  children  ;  her  third 
husband,  Mr.  Sherman,  and  two  of  his  children.  Her  second  hus- 
band., Mr.  Hurlburt,  died  with  similar  symptoms  of  arsenical  poison- 
ing, but  she  maintained  that  it  was  not  with  her  knowledge  at  all 


action,  which  seems  to  have  been  di- 
vinely appointed,  as  a  most  eflFectual 
instrument  in  a  system  of  self-retribu- 
tion ;  and  without  which  crimes  of  the 
most  aggravated  enormity  would  con- 
stantly and  forever  escape  and  defy 
discovery. 

"But  in  a  wider  range  of  observa- 
tion, looking  at  crime  in  general,  as  a 
course  of  conduct  prompted  by  certain 
motives,  and  persisted  in,  in  the  hope 
of  attaining  certain  ends,  its  intrinsic 
folly,  under  any  circumstances,  be- 
comes apparent.  In  yielding  to  the 
force  of  temptation  (the  real  essence  of 
most  forms  of  guilt),  and  voluntarily 
encountering  the  hazard  of  conse- 
quences far  outweighing  the  pain  pro- 
posed ;  in  entering  on  a  path  pur- 
posely obscured,  and  most  literally 
crooked  and  tortuous,  where  the  end 
can  never  be  seen  from  the  beginning, 
and  trusting  himself  and  all  his  inter- 
ests to  the  issues  of  events  which  he 
can  never  wholly  control,  the  criminal 
constantly  manifests  the  most  egregious 
folly.  And  such  is  often  his  own  de- 
clared' estimate  of  himself,  the  moment 
after  the  criminal  impulse  is  satisfied, 
and  he  has  time  to  reflect  on  what  has 
been  done,  and  what  is  to  he  done.  And, 
perhaps,  the  bitterest  and  most  intoler- 


able ingredient  of  remorse,  when,  after 
all  his  arts  have  been  exhausted  in 
attempts  to  conceal  his  guilt,  he  finds 
himself  detected  and  condemned,  is  the 
same  abiding  consciousness  of  his  own 
folly. 

"The  criminal  practice  of  the  old 
Roman  law  furnishes  an  illustration 
which  may  be  used  as  a  fitting  conclu- 
sion to  the  present  course  of  remark. 
In  capital  cases,  when  the  jury  con- 
demned the  accused,  instead  of  using 
the  direct  language  of  our  time  and 
system,  and  pronouncing  him  '  guilty' 
of  the  crime  charged,  they  adopted  an 
indirect  form  of  expression,  and  dis- 
guised the  dreadful  announcement 
under  one  of  those  euphemisms  in 
which  their  language  abounded  : 
'  Parum  cavisse  videtur,^  said  they  :  '  He 
seems  to  have  been  incautious,'  'We 
think  he  has  not  been  sufficiently  upon 
his  guard  !'  Want  of  due  caution  most 
comprehensively  and  forcibly  expresses 
the  sum  of  the  whole  conduct  of  a  con- 
demned criminal,  from  its  earliest  in- 
stigating impulse  to  its  fatal  result. 
Caution  might,  i:)erhaps,  have  led  him 
to  escape  detection  and  its  penalty  ; 
but  truer  andwiser  caution  would  have 
enabled  him  to  escape  the  crime." 

'  Wh.  Cr.  Ev.  8th  ed.  §  50. 

707 


§  790.]       MEIS'TAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLT. 

events,  that  he  got  the  poison  ;  it  is  possible,  that  in  this  instance 
she  may  have  been  only  the  occasion  of  the  death,  and  not  its  cause 
— Mr.  Hurlburt  having  possibly  confounded  some  of  his  wife's 
arsenic  "with  powders  of  his  own  with  which  he  was  accustomed,  as 
she  says,  to  guard  against  the  acidity  of  his  beer.  "What  is  re- 
markable, as  is  noticed  by  the  iSpeetatoi-,  is  that  Mrs.  Sherman 
always  uses  the  same  phrase,  "  discouraged,"  to  describe  the  state 
of  mind  which  induced  her  to  commit  murder.  "  Time  after  time 
she  repeats  that  she  was  greatly  '  discouraged'  at  the  thought  of 
her  husband  or  her  children  being  a  burden  to  her,  and  that  under 
this  sense  of  discouragement  she  quietly  put  them  out  of  the  way. 
Only  on  the  first  occasion  does  she  attribute  the  crime  to  external 
suggestions.  She  asserts  that  a  police  officer  suggested  to  her  to 
put  her  first  husband,  who  had  taken  to  his  bed,  and  was  apparently 
suffering  from  softening  of  the  brain,  out  of  the  way,  and  recom- 
mended her  to  try  arsenic.  But  as  there  does  not  appear  to  have 
been  the  slightest  motive  for  his  suggesting  such  a  crime,  as  there 
is  no  hint  even  of  an  intrigue,  or  of  any  further  relation  between 
him  and  the  woman  he  is  said  to  have  advised,  we  cannot  believe 
this  part  of  the  story  ;  a  bad  man  would  not  have  given  very  dan- 
gerous advice  by  which  he  was  to  take  no  profit,  and,  of  course,  a 
decent  man  would  not  have  given  such  advice  at  all ;  so  that  the 
falsehood,  if  it  be  one,  throws  grave  doubt  on  her  assertion  of  being 
innocent  of  the  murder  of  her  second  husband,  and  makes  it  seem 
not  unlikely  that  this  apparently  arbitrary  disavowal  of  guilt  was 
due  to  some  inexplicable  association  which  made  it  more  painful  to 
her  to  confess  this  than  any  another  crime.  It  seems  that  to  this 
husband  she  was  indebted  for  a  substantial  bequest  in  the  way  of 
property,  and  this,  while  it  adds  to  the  probability  of  the  murder, 
may  have  rendered  her  less  willing  to  avow  it.  It  clearly  was  not  in 
this  case  '  discouragement' — the  motive  uniformly  pleaded  in  every 
other — which  led  to  the  murder,  if  murder  it  was.  There  was  no 
pretence  for  fearing  that  Mr.  Hurlburt  would  be  a  great  burden  to 
her,  either  pecuniarily  or  otherwise.  He  had  enriched  her,  and 
left  her  better  off  than  she  had  ever  been  before  in  life.  One  of 
the  worst  parts  of  the  story  of  Mrs.  Sherman's  confession  is  that, 
after  making  it,  and  talking  a  good  deal  of  horrid  rant  about  her 
conversion  and  reconciliation  to  Christ,  she  declared  herself  very 
happy  indeed,  which  she  had,  she  said,  never  been  before  in  life, 
708 


PSYCHICAL  INDICATIONS  AFTER  CRIME.  [§  790. 

and  accompanied  her  declaration  with  what  the  Neiv  York  Herald'' s 
reporter  calls  a  kind  of  '  festive  titter,'  which  went  through  her 
whole  frame  and  gave  her  an  appearance  of  real  enjoyment.  The 
chronic  '  discouragement'  which  had  led  to  her  eight  or  nine  mur- 
ders had  now  apparently  for  the  first  time  ceased.  It  is  another 
curious  feature  of  the  case  that  the  woman  seems  to  have  lived  a 
regular  and  quiet  domestic  life  till  she  was  nearly  forty,  and  only 
to  have  begun  her  course  of  murders  at  that  age,  when  her  first 
husband's  brain  began  to  soften  and  she  first  became  '  discouraged.' 
After  that  every  little  discouragement  led  to  new  murders.  She 
put  two  of  her  children,  a  daughter  and  son,  out  of  the  way — the 
son,  '  a  beautiful  boy,  who  did  not  complain  during  his  illness' — 
from  '  discouragement'  at  the  prospect  of  having  to  support  them  ; 
then  a  third  son,  nearly  grown  up,  was  murdered  from  discourage- 
ment at  the  prospect  of  a  long  illness  in  which  she  might  have  had 
to  support  him ;  then  a  second  daughter,  somewhat  of  an  invalid, 
the  care  of  whom  kept  her  occasionally  at  home,  was  murdered, 
out  of  discouragement  at  the  prospect  of  '  a  hard  winter ;'  her  third 
husband  she  dosed  with  arsenic  in  his  drink,  she  says  out  of  the 
wish  to  sicken  him  of  drink — a  very  unlikely  story  for  a  woman  so 
experienced  in  the  fatal  eifects  of  arsenic  ;  and  his  two  children — 
the  baby,  and  a  daughter  who  had  shown  great  attachment  to  her 
murderous  step-mother — she  apparently  poisoned  solely  to  get  rid 
of  small  domestic  annoyances.  She  seems  to  have  had  a  calm, 
kindly  manner  popular  with  men,  and  not  exciting  any  suspicion 
among  the  doctors,  who,  like  our  English  country  surgeons  in  the 
recent  case  in  the  north,  uniformly  ascribed  the  arsenical  sickness, 
to  the  woman's  own  great  surprise,  to  gastric  fever,  except  in  one 
case,  that  of  her  eldest  son,  a  painter,  in  which  it  was  ascribed  to 
'  painter's  colic'  Under  this  calm,  easy  manner  she  seems  to  have 
concealed  one  of  those  cold  and  callous  hearts  to  which  the  pros- 
pect of  inconveniences  or  annoyances  of  any  kind  immediately  sug- 
gested that  they  were  most  likely  to  be  radically  removed  by 
removing  the  persons  who  caused  them.  The  interest  of  the  per- 
petually recurring  phrase  she  uses  to  describe  her  motive — 'dis- 
couragement'— is  not  so  much  that  it  appears  to  have  been  really 
her  chief  motive,  as  that  it  was  almost  certainly  the  state  of  feeling 
by  which  she  excused  to  herself  her  wonderfully  cruel  and  reiterated 
murders.     In  confessing  her  state  of  mind  when  about  to  murder 

709 


§  790.]      MEXTAL   UXSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

her  eldest  son,  she  remarks  that  she  now  knows  that  her  deep  feel- 
ing of  discouragement  was  '  not  much  of  an  excuse,  but  I  felt  so 
much  troubled  that  I  did  not  think  about  that.'     To  her  own  mind 
it  evidently  palliated  the  enormity  of  her  guilt  to  reflect  that  she 
had  no  heart  to  encounter  the  troubles  and  annoyances  before  her 
if  she  had  allowed  her  husbands  and  children  to  go  on  fretting  her 
by  their  demands  for  attendance  and  help,     What  could  she  do  in 
that  dejected  state  but  just  slip  them  quietly  out  of  the  way,  by 
mixins;  '  half  a  thimbleful  of  arsenic'  in  their  tea  or  gruel  ?     If  she 
had  had  more  energy,  more  hope,  more  life,  she  thinks  there  would 
have  been  less  excuse  for  her.     As  it  was,  the  temptation  was  too 
severe  ;  she  subsided  into  murder,  as  it  were,  through  sheer  fatigue 
of  mind  at  the  thought  of  the  many  troubles  before  her  if  she  hesi- 
tated about  it.     The  grim  peculiarity  of  the  case  is  this  curious 
assumption  that  murder,  instead  of  needing  positive  passion  or  other 
powerful  incentives  of  some  vulgar  kind  to  account  for  it,  is,  as  it 
were,  the  natural  resource  of  feebleness  and  languor  of  tempera- 
ment.   If  you  don't  feel  up  to  fighting  your  way  through  difficulties, 
the  natural  man  suggests  to  you,  as  Mrs.  Sherman  evidently  thinks, 
not  to  droop  and  die,  or  at  worst  to  put  an  end  to  yourself,  but  to 
put  an  end  to  your  sources  of  human  anxiety,  as  you  would  to 
gnats  or  hornets,  by  extinguishing  their  life,  not  your  own.     You 
see  your  eldest  son,  who  had  contributed  a  good  deal  to  your  sup- 
port, sickening,  and  becoming  not  only  a  pecuniary  burden,  but 
a  probable  cause  of  fatigue  and  fret  for  weeks  to  come,  and  the 
natural  recourse  of  the  imagination  is  to  the  most  convenient  mode 
of  finally  silencing  all  these  importunate  demands.     The  woman,  by 
her  own  account  at  least,  never  seems  to  have  thought  of  murder 
till  some  inconvenience  arose  to  her  from   the  person  whom   she 
proposed  to  murder.     She  had  no  insane  or  morbid  delight  in  the 
process.     It  was  not  till  it  occurred  to  her  that  but  for  little  Ann 
Eliza's  claims  on  her  time  she  and  the  elder  daughter  Lydia  would 
make  a  good  income  together,  that  she  gave  little  Ann  Eliza  arsenic 
to  clear  her  out  of  the  way.    It  was  not  till  she  found  that  her  little 
step-son,  Franky  Sherman,  very  inconveniently  for  her,  would  nei- 
ther get  quite  well  nor  die,  that  she  found  it   advisable  to  put  an 
end  to  the  hesitation  of  nature  by  giving  him  a  very  decided  impulse 
towards  the  grave.     There  does  not  seem  to  have  been  any  murder- 
ous eagerness  in  the  woman.     It  was  simply  that  she  felt  it  the 
710 


PSYCHICAL   INDICATIONS    AFTER    CRIME.  [§  790. 

most  natural  resource  when  she  wanted  to  remove  a  cause  of  fric- 
tion. A  husband  or  child  caused  her  low  spirits,  and  the  only  way 
to  remove  the  weight  on  her  spirits  was  to  make  the  inconvenient 
husband  or  child  disappear.  No  account  of  the  psychology  of 
murder  more  ghastly  can  well  be  suggested,  and  yet  it  does  put 
very  strongly  before  us  one  element  in  moral  evil  to  which  atten- 
tion is  too  little  drawn.  The  common  conception  of  the  most  hideous 
forms  of  moral  evil  is  a  conception  of  something  due  to  the  excess 
of  passion,  or  self-Avill,  or  love  of  wealth  or  ambition,  or  some  other 
not  necessarily  ignoble  motive — only  ignoble  when  it  comes  into 
collision  with  and  overpowers  other  far  nobler  impulses.  But  we 
forget  too  much  that  in  all  these  cases  what  looks  like  the  super- 
fluous energy  and  excess  of  some  quality  which,  in  moderation,  we 
do  not  despise  but  perhaps  even  admire,  almost  always  implies  also 
an  immense  deficiency  in  the  power  of  sympathy,  in  the  capacity 
for  entering  into  the  life  of  others.  And  it  is  less  the  apparently 
active  motive,  than  the  deficiency  of  some  other  much  nobler  motive, 
which  really  causes  the  temptation.  Ambition,  however  high  and 
overweening,  would  seldom  lead  to  crimes  of  this  kind,  unless  there 
was  such  a  slowness  and  poverty  of  sympathy  with  the  victims  of 
our  evil  deeds  that  the  weight  in  the  other  scale  were  wanting. 
After  all,  it  is  far  oftener  want  of  sympathetic  life  than  excess  of 
egoistic  life  which  tempts  to  these  crimes.  And  in  this  wretched 
Avoman's  case  we  have  the  most  perfect  illustration  that  the  most 
dwindled  nature,  the  nature  not  of  most  passion,  but  of  least,  is  the 
one  of  purest  evil.  A  creature  whose  languor  is  the  destructive 
element  in  her,  who  murders  to  save  herself  from  a  little  worry, 
who  gets  rid  of  her  daughters  and  sons  as  she  would  of  troublesome 
midges,  and  first  finds  out  when  she  is  convicted  that  low  spirits 
are  not  sufficient  excuse  for  a  habit  of  murder,  is  the  most  terrible 
warning  that  human  imagination  can  conceive  of  the  wholesale 
destructiveness  of  pure,  unadulterated  self-occupation — of  the  fierce 
scourge  which  moral  nothingness — refined,  as  it  were,  to  a  sharp 
invisible  sword-edge  for  the  slaying  of  others — may  become  for  the 
more  positive  life  Avith  Avhich  it  comes  in  contact.  Cease  to  care 
for  any  one  but  yourself,  and,  though  you  have  not  life  enough  to 
want  for  yourself  anything  postitive,  though  your  only  real  desire 
may  be  to  rid  yourself  of  inconvenience,  you  Avill  become,  by  virtue 
of  the  very  grinding  away  of  your  nature,  at  once  more  destructive 

m 


§  791a.]     MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOaiCALLY. 

and  far  more  dangerous  than  creatures  of  larger  passions  with  some- 
thing left  in  them  on  which  the  sense  of  guilt  and  fear  may  act. 
Mrs.  Sherman,  with  her  titter  of  recovered  happiness  and  her  mur- 
derous '  discouragement,'  seems  to  us  a  sort  of  parable  of  the  truly 
negative  and  yet  sweepingly  destructive  character  of  pure  evil — of 
that  climax  of  calm  deceit  and  deadly  purpose  to  which  dwindling 
sympathies  and  torpid  desires  may  rise,  when  they  have  shrunk 
into  the  keen,  intangible,  invisible  knife-edge  of  purely  passive  self- 
love."  So  far  as  concerns  the  topic  immediately  before  us,  the 
retributive  element  in  guilt  of  this  particular  type  is,  that  when  the 
criminal  loses  his  abhorrence  of  crime  he  loses  the  reticence  by 
which  crime  is  concealed.  When  he  becomes  callous  he  ceases  to 
become  secretive.  The  wickedness  that  perpetrates  a  long  series 
of  crimes  is  the  wickedness  that  discloses  their  perpetration. 

§  791.    It  must   be   remembered,  however,  that  confessions  may 

emanate  from  delusion,  or  from  a  morbid  desire  to  at- 

to^confes-^     tract    attention,   a    sort    of   epidemic    which    sometimes 

sion  under  gtHkes  down  whole  classes  with  a  passionate  impulse  to 
delusion.  _  ^  _         -^ 

insist  upon  some  blood-stain  on  the  conscience,  some- 
thing like  the  hypochondriac  epidemic  impulse  which  insists  upon 
some  personal  abnormity  ;^  from  weariness  of  life,  or  from  a  pro- 
pensity to  self-destruction  through  a  channel  which  from  its  very 
tortuousness  possesses  its  own  fascination.^ 

§T91rt.    x\s    illustrating    delusions    the   following  case   maybe 

cited :  Two  brothers,  named  Boorn,  livins;  in  Vermont, 
Delusions.       ,      ^  ,  .  .,.,,.,      ° 

Case  of  the    nad  an  altercation  with  their  brother-in-law,  a  man  named 

corns.         Colvin,  a  partial  lunatic.      They  left  him,  as  they  may 

well  have  supposed,  in  a  dying  state.    He  crawled  off,  however,  and 

fled  to  the  Middle  States.     Several  years  afterwards,  suspicion  was 

excited  by  a  dream  of  an  uncle  of  the  supposed  murderers.     la 

this  dream  he  was  told  that  Colvin  had  been  murdered,  and  that 

his  remains  would  be  found  in  a  spot  that  was  pointed  out.      The 

dream  was  repeated  three  times  until  at  last  the  place  was  searched, 

and  some  articles  of  clothing  were  found  which  were  identified  as 

Colvin's.      Then  a  spaniel,  connected  in  some  way  with  the  Colvin 

'    We   have    an    illustration   of   the  ^  These   points    will   be   found    ex- 
latter  in  a  convent  of  nuns,  near  Cha-  panded    and   illnstrated  in  Wli.    Cr. 
Ions,  who  were  stricken  down  with  the  Ev.  8th  ed.  §§  626  et  seq. 
belief  that  they  were  cats. 

712 


PSYCHICAL   INDICATIONS    AFTER    CRIME.  [§  791a. 

family,  was  seen  snuffing  uneasily  about  the  spot  close  by,  calling 
attention  to  it  by  his  importunities.  It,  too,  was  examined,  and  a 
cluster  of  bones  were  drawn  up  by  the  dog's  paw.  That  these 
were  Colvin's,  and  that  these  almost  miraculous  interpositions  were 
desicfned  to  bring  the  murder  out,  there  were  none  in  the  commu- 
nity  who  doubted.  Other  circumstances  led  to  the  arrest  of  the 
Booms.  They  were  conscious  of  guilt,  and  it  is  no  wonder  that 
these  strange  prosecutors,  Avho  after  so  long  an  interval  had  united 
by  means  so  extraordinary  to  ferret  out  their  guilt,  should  have 
impressed  them  with  a  belief  that  it  was  vain  to  fight  against  what 
seemed  to  be  divine  vengeance.  So  one  of  them  confessed  the 
murderous  assault,  and  went  on  further  to  state  how,  in  order  to 
evade  detection,  the  body  had  been  partially  burned,  and  the 
clothes  destroyed.  The  first  part  of  the  story  was  true  ;  the  last 
was  a  fabrication,  the  result  either  of  delusion  or  of  desperation, 
or  of  that  impulse  to  complete  a  story  with  which  the  imagination 
is  sometimes  seized.  That  the  actual  death  was  indeed  false, 
was  shown  by  the  subsequent  appearance  of  Colvin  himself,  in 
time  to  intercept  the  execution  of  at  least  one  of  his  supposed 
murderers. 

But  a  still  more  singular  confession  followed.  The  first  was  in 
1819.  In  1860  a  very  old  man  named  Boom  was  arrested  in 
Cleveland  for  counterfeiting.  When  in  custody,  he  confessed  that 
forty  years  before  he  had  been  concerned  in  a  murder,  and  escaped 
by  a  false  personation  of  the  deceased.  The  confession  led  to  a 
re-investigation  of  the  former  trial.  That  the  second  confession,  as 
well  as  the  first,  was  a  delusion,  was  established  finally.  But  the 
retention  of  this  delusion  for  forty  years  in  the  criminal's  breast 
shows  the  enduring  effect  on  the  nervous  system  of  a  sense  of 
guilt,  even  though  that  guilt  was  not  consummated.^ 

•  See  Wh.  Cr.  Ev.  8th  ed.  §   634;  "Springfield,  June  19,  1841. 

Blackwood's  Magazine,  July,  1860,    p.  "Dear  Speed:    We   have   had  the 

54;   Journ.  Psyc.  Med.  1871,  p.  357;  highest  state  of  excitement  here  for  a 

supra,  §    200  6.      See   also   the  case  of  week    past   that   our   community   has 

Soren  Qvist,  in  Mr.  Phillips's  Famous  ever    witnessed  ;     and     although    the 

Cases  of  Circumstantial  Evidence.  public   feeling    is    somewhat    allayed, 

Lamon's  Life  of  Lincoln   (1872),  p.  the  curious  affair  which  aroused  it  is 

318,  gives  the  following  letter  from  Mr.  very  far  from  being  over  yet,  cleared 

Lincoln  : —  of  mystery.      It  would  take  a  quire  of 

713 


§  191a.']    MEXTAL   UNSOUNDNESS   CONSIDERED   PSYOHOLOaiCALLY. 

In  the  same  connection  may  be  examined  a  well-known  English 
case  called  the  Campden  Wonder.     An  old  man,  named  William 


paper  to  give  you  anytliiiig  like  a  full 
account  of  it,  and  I,  tlierefore,  only 
propose  a  brief  outline. 

"  The  cMef  personages  in  the  drama 
are  Archibald  Fisher,  supposed  to  be 
murdered,  and  Archibald  Trailor, 
Henry  Trailor,  and  William  Trailor, 
supposed  to  have  murdered  him.  The 
three  Trailors  are  brothers.  The  first, 
Archibald,  as  you  know,  lives  in  town  ; 
the  second,  Henry,  in  Clary's  Grove  ; 
and  the  third,  William,  in  Warren 
county ;  and  Fisher,  the  supposed 
murdered,  being  without  a  family,  had 
made  his  home  with  William.  On 
Saturday  evening,  being  the  29th  of 
May,  Fisher  and  William  came  to 
Henry's  in  a  one-horse  dearborn,  and 
there  staid  over  Sunday  ;  and  on  Mon- 
day all  three  came  to  Springfield 
(Henry  on  horseback),  and  joined 
Archibald  at  Myers's,  the  Dutch  car- 
penter. That  evening  at  supper  Fisher 
was  missing,  and  so  next  morning 
some  ineffectual  search  was  made  for 
Mm;  and  on  Tuesday,  at  one  o'clock 
P.  M.,  William  and  Henry  started 
home  without  him.  In  a  day  or  two 
Henry  and  one  or  two  of  his  Clary 
Grove  neighbors  came  back  for  him 
again,  and  advertised  his  disappear- 
ance in  the  papers. 

"  The  knowledge  of  the  matter  thus 
far  had  not  been  general,  and  here  it 
dropped  entirely  till  about  the  10th 
inst.,  wlien  Keys  received  a  letter  from 
the  postmaster  in  Warren  county,  that 
William  had  arrived  at  home,  and  was 
telling  a  very  mysterious  and  improba- 
ble story  about  the  disappearance  of 
Fisher,  which  induced  the  community- 
there  to  suppose  he  had  been  disposed 
of  unfairly.  Keys  made  this  letter 
public,  which  immediately  set  the 
whole  t6wn  and  adjoining  county  agog. 

714 


And  so  it  has  continued  until  yester- 
day. 

' '  The  mass  of  the  people  commenced 
a  systematic  search  for  the  dead  body, 
while  Wickersham  was  dispatched  to 
arrest  Henry  Trailor  at  the  Grove, 
and  Jim  Maxcy  to  Warren  to  arrest 
William.  On  Monday  last  Henry  was 
brought  in,  and  showed  an  evident 
inclination  to  insinuate  that  he  knew 
Fisher  to  be  dead,  and  that  Archibald 
and  William  had  killed  him.  He  said 
he  guessed  the  body  could  be  found  in 
Spring  Creek,  between  the  Beardstown 
Road  and  Hickox's  mill.  Away  the 
people  swept  like  a  herd  of  buffalo,  and 
cut  down  Hickox's  mill-dam  nolens 
volens,  to  draw  the  water  out  of  the 
pond,  and  then  went  up  and  down,  and 
down  and  up  the  creek,  fishing  and 
raking,  and  raking  and  ducking,  and 
diving  for  two  days  ;  and,  after  all,  no 
dead  body  found.  In  the  mean  time  a 
sort  of  a  scufiiing-ground  had  been 
found  in  the  brush  in  the  angle  or 
point  where  the  road  leading  into  the 
woods  past  the  brewery  and  the  one 
leading  in  past  the  brick  grove  meet. 
From  the  scuflie-ground  was  the  sign 
of  something  about  the  size  of  a  man 
having  been  dragged  to  the  edge  of  the 
thicket,  where  joined  the  track  of  some 
small  wheeled  carriage  drawn  by  one 
horse,  as  shown  by  the  road-track. 
The  carriage  track  led  off  towards 
Spring  Creek.  Near  this  drag-trail, 
Dr.  Merryman  found  two  hairs,  which, 
after  a  long  scientific  examination,  he 
pronounced  to  be  triangular  human 
hair,  which  term,  he  says,  includes 
within  it  the  whiskers,  the  hair  grow- 
ing under  the  arms,  and  on  other  parts 
of  the  body  ;  and  he  judged  that  these 
two  were  of  the  whiskers,  because  the 
ends  were  cut,  showing  that  they  had 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  791  a. 

Harrison,  steward  to  Lady  Campden,  went  out  on  foot  on  the  16th 
of  August,  1660,  to  collect  rents.     He  did  not  return  at  his  usual 


flourished  in  the  neighborhood  of  the 
razor's  operations. 

"  On  ThVirsday  last  Jim  Maxoy 
brought  in  William  Trailer  from  War- 
ren. On  the  same  day  Archibald  was 
arrested,  and  put  in  jail.  Yesterday 
(Friday)  William  was  put  upon  his 
examining  trial  before  May  and  Lavely; 
Archibald  and  Henry  were  both  pres- 
ent. Lamborn  prosecuted,  and  Logan, 
Baker,  and  your  humble  servant  de- 
fended. A  great  many  witnesses  were 
introduced  and  examined,  but  I  shall 
only  mention  those  whose  testimony 
seemed  most  important.  The  first  of 
these  was  Capt.  Ransdell.  He  swore 
that,  when  William  and  Henry  left 
Springfield  for  home  on  Tuesday  be- 
fore mentioned,  they  did  not  take  the 
direct  route,  which,  you  know,  leads 
by  the  butcher-shop  ;  but  that  they 
followed  the  street  north  until  they  got 
opposite,  or  nearly  opposite,  May's  new 
house,  after  which  he  could  not  see 
them  from  where  he  stood  ;  and  it  was 
afterwards  proved,  that,  in  about  an 
hour  after  they  started,  they  came  into 
the  street  by  the  butcher's  shop  from 
towards  the  brick-yard.  Dr.  Merry- 
man  and  others  swore  to  what  is  stated 
about  the  scufile-ground,  drag-trail, 
whiskers,  and  carriage  tracks. 

"  Henry  was  then  introduced  by  the 
prosecution.  He  swore  that  when  they 
started  for  home,  they  went  out  north, 
as  Ransdell  stated,  and  turned  down 
west  by  the  brick -yard  into  the  woods, 
and  there  met  Archibald ;  that  they 
proceeded  a  small  distance  further, 
when  he  was  placed  as  a  sentinel  to 
watch  for  aiid  announce  the  approach 
of  any  one  that  might  hajjpen  that 
way  ;  that  William  and  Archibald  took 
the  dearborn  out  of  the  road  a  small 
distance   to   the   edge  of  the  thicket, 


where  they  stopped,  and  he  saw  them 
lift  the  body  of  a  man  into  it ;  that 
they  moved  oflf  with  the  carriage  in  the 
direction  of  Hickox's  mill,  and  he 
loitered  about  for  something  like  an 
hour,  when  William  returned  with  the 
carriage,  but  without  Archibald,  and 
said  that  they  had  put  him  in  a  safe 
place  ;  that  they  went  somehow,  he  did 
not  know  exactly  how,  into  the  road 
close  to  the  brewery,  and  proceeded  on 
to  Clary's  Grove.  He  also  stated  that 
some  time  during  the  day  William  told 
him  that  he  and  Archibald  had  killed 
Fisher  the  evening  before ;  that  the 
way  they  did  it  was  by  him  (William) 
knocking  him  down  with  a  club,  and 
Archibald  then  choking  him  to  death. 
"An  old  man  from  Warren,  called 
Dr.  Gilmore,  was  then  introduced  on 
the  part  of  the  defence.  He  swore  that 
he  had  known  Fisher  for  several  years, 
that  Fisher  had  resided  at  his  house  a 
long  time  at  each  of  two  difi"erent  spells  ; 
once  while  he  built  a  barn  for  him,  and 
once  while  he  was  doctored  for  some 
chronic  disease  ;  that  two  or  three  years 
ago  Fisher  had  a  serious  hurt  in  his 
head  by  the  bursting  of  a  gun,  since 
which  he  had  been  subject  to  continued 
bad  health,  and  occasional  aberration 
of  mind.  He  also  stated  that  on  last 
Tuesday,  being  the  same  day  that 
Maxcy  arrested  William  Trailer,  he 
(the  doctor)  was  from  home  in  the  early 
part  of  the  day,  and  on  his  return, 
about  11  o'clock,  found  Fisher  at  his 
house  in  bed,  and  apparently  very  un- 
well ;  that  he  asked  him  how  he  had 
come  from  Springfield  ;  that  Fisher  said 
he  had  come  by  Peoria,  and  also  told  of 
several  other  places  he  had  been  at, 
more  in  the  direction  of  Peoria,  which 
showed  that  he  at  the  time  of  speaking 
did  not  know  where  he  had  been  wan- 

715 


§791<l.]    MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

hour,  and  his  wife  sent  his  servant,  John  Perry,  to  inquire  after 
him.  Perry,  according  to  his  own  account,  wandered  about  during 
the  night  without  finding  his  master.  The  next  morning,  however, 
a  hat  and  comb  much  hacked  and  cut,  and  a  band  stained  with  blood, 
which  had  been  worn  by  Harrison  the  evening  before,  were  found 
in  a  wild  spot,  near  a  large  furze  brake,  where  he  would  have  been 
likely  to  have  been  met  by  Perry.  The  neighborhood  naturally 
enough  jumped  at  the  conclusion  that  Harrison  was  murdered,  and 
that  Perry  was  the  murderer.  Perry  soon  came  to  this  conclusion 
too,  and  made  a  confession  to  this  effect,  implicating  his  brother  and 
mother.     The  trial  took  place,  and,  though  there  was  no  proof  of 


dering  about  in  a  state  of  derangement. 
He  further  stated,  that  in  about  two 
hours  he  received  a  note  from  one  of  the 
Trailor's  friends,  advising  him  of  his 
arrest,  and  requesting  him  to  go  on  to 
Springfield  as  a  witness,  to  testify  as 
to  the  state  of  Fisher's  health  in  former 
times ;  that  he  immediately  set  off, 
calling  iipon  two  of  his  neighbors  as 
company,  and  riding  all  evening  and 
all  night,  overtook  Maxcy  and  William 
at  Lewistown  in  Fulton  County.  That 
Maxcy  refusing  to  discharge  Trailer 
upon  his  statement,  his  two  neighbors 
returned,  and  he  came  on  to  Spring- 
field. Some  question  being  made  as  to 
whether  the  doctor's  story  was  not  a 
fabrication,  several  acquaintances  of 
his  (among  whom  was  the  same  post- 
master who  wrote  to  Keys  as  before 
mentioned)  were  introduced  as  a  sort 
of  compurgators,  who  swore  that  they 
knew  the  doctor  to  be  of  good  character 
for  truth  and  veracity,  and  generally 
of  good  character  in  every  way. 

"  Here  the  testimony  ended,  and  the 
Trailers  were  discharged,  Archibald 
and  William  expressing,  both  in  word 
and  manner,  their  entire  confidence 
that  Fisher  would  be  found  alive  at  the 
doctor's  by  Galloway,  Mallory,  and 
Myers,  who  a  day  before  had  been  dis- 
patched for  that  purpose  ;  while  Henry 

71d 


still  protested  that  no  power  on  earth 
could  ever  show  Fisher  alive.  Thus 
stands  this  curious  afl'air. 

"When  the  doctor's  story  was  first 
made  public,  it  was  amusing  to  scan 
and  contemplate  the  countenances,  and 
hear  the  remarks  of  those  who  had 
been  actively  engaged  in  the  search  for 
the  dead  body  ;  some  looked  quizzical, 
some  melancholy,  and  some  furiously 
angry.  Porter,  who  had  been  very 
active,  swore  he  always  knew  the  man 
was  not  dead,  and  that  he  had  not 
stirred  an  inch  to  hunt  for  him.  Lang- 
ford,  who  had  taken  the  lead  in  cut- 
ting down  Hickox's  mill-dam,  and 
wanted  to  hang  Hickox  for  objecting, 
looked  most  awfully  woebegone  ;  he 
seemed  the  '  victim  of  hunrequited  affec- 
tion,' as  represented  in  the  comic  al- 
manacs we  used  to  laugh  over.  And 
Hart,  the  little  drayman  that  hauled 
Molly  home  once,  said  it  was  too 
damned  bad  to  have  so  much  trouble, 
and  no  hanging  after  all.  I  commenced 
this  letter  yesterday,  since  which  I  re- 
ceived yours  of  the  13th.  I  stick  to 
my  promise  to  come  to  Louisville. 
Nothing  new  here,  except  what  I  have 
written." 

See  4  West.  Law  Journ,  25,  for  addi- 
tional details. 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  792. 

the  corpus  delicti,  the  mother  and  the  two  sons  were  convicted  and 
executed.  Some  years  afterwards  Harrison  reappeared  at  Campden, 
stating  that  he  had  been  robbed  by  ten  horsemen  on  the  night  in 
question,  and  then  kidnapped  and  carried  beyond  seas.  It  is  possi- 
ble, supposing  this  to  be  true,  to  explain  Perry's  conclusion  on  the 
ground  either  of  delusion  or  of  desire  for  notoriety. 

§  792.  Of  confessions  from  desire  for  notoriety  we  have  nume- 
rous illustrations.  A  mulatto  named  Qhastine  Cox  was  Desire  for 
tried  in  New  York  in  1879  for  the  murder  of  a  lady  notoriety. 
under  circumstances  which  made  it  for  some  time  difficult  to  find 
the  track  of  the  assassin.  Public  attention  was  directed  to  the 
question  for  several  weeks  ;  numerous  communications  appeared  in 
the  papers  implicating  more  or  less  directly  various  parties ;  and 
the  police  were  advised  of  a  confession  by  a  tramp,  who  took  this 
way  of  attracting  attention  to  himself  as  the  supposed  murderer, 
but  who  turned  out  ultimately  not  to  have  had  the  slightest  connec- 
tion with  the  offence. 

Mr.  McCarthy,  when  discussing  in  his  history  the  Jamaica  in- 
vestigation of  1865,  says:  "  Many  wild  exaggerations  had  found 
their  way  into  some  newspapers.  These  came  from  private  letters. 
It  sometimes  happened  that  men  who  had  been  engaged  in  putting 
down  the  insurrection  represented  themselves  as  having  done  deeds 
of  savage  vengeance  of  which  they  were  really  not  guilty.  .  .  . 
Such  seems  to  have  been  the  fervor  of  repression  in  Jamaica  that 
persons  were  found  eager  to  claim  an  undue  share  of  its  honors  by 
ascribing  to  themselves  detestable  excesses  which,  in  point  of  fact, 
they  had  not  committed." 

Of  confessions  of  this  class  hypochondria  gives  many  illus- 
trations. Persons  whose  temperament  has  become  thus  touched 
will  resort  to  the  most  desperate  methods  to  attract  attention. 
The  most  innocent  type  that  we  have  is  that  of  the  sentimentalist, 
who  feigns  certain  mental  experiences  of  a  peculiarly  poignant 
character,  which  experiences  are  hung  out  something  in  the  way 
pictures  are  in  a  gallery,  to  excite  the  interest  of  the  amateur. 
Of  course  the  more  lurid  the  coloring,  and  the  more  sad  the  sorrow 
it  depicts,  the  more  real  the  sympathy  to  be  secured  from  an  honest 
and  kind-hearted  observer,  and  the  more  profuse  the  ejaculations 
of  the  mere  co-sentimentalist. 

Next/ac^s  are  fabricated  as  well  as  experiences.      Thus  Cheru- 

717 


§  792,]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

bina  believes  that  she  was  changed  in  the  cradle,  and  that  an  earl 
and  a  countess  are  her  parents,  instead  of  the  old  farmer  and  his 
wife  who  brought  her  up.  This  big  lie,  of  course,  necessitates  a 
myriad  of  minor  ones  to  enable  it  to  be  carried  about  with  a 
proper  retinue,  until  Cherubina's  whole  life  becomes  a  fabrication. 
If  guilt  has  to  be  confessed  to  make  up  a  consistent  story,  a  con- 
fession of  guilt  is  fabricated. 

Persecutions  with  such  -are 'favorite  myths.  Margaret  Fuller, 
whose  attitudes  and  surroundings,  in  spite  of  her  apparent  earnest- 
ness, were  all  pictorial  and  artificial,  made  the  neglect  she  suffered 
from  her  father  one  of  the  favorite  topics  in  her  letters,  though 
even  her  editor,  laudatory  as  he  is,  is  forced  to  tell  us  that  all  this 
neglect  was  imaginary — that  a  kinder  or  truer  father  did  not  exist. 
It  is  still  doubtful  whether  Casper  Hauser's  wounds  were  not  self- 
inflicted  and  his  dumbness  self-assumed.  And  it  is  certain  that  the 
more  tender  the  care  bestowed  on  such  cases  is,  and  the  more  con- 
fiding the  sympathies,  the  more  frequent  and  subtle  the  simulation. 

But  if  the  flag  by  which  this  attention  is  to  be  roused  is  inscribed 
among  the  more  refined  with  a  sentiment,  among  the  coarser  it  is 
likely  to  be  blazoned  with  a  crime.  Lord  Cockburn,  in  his  memoirs, 
gives  us  the  following;  instance  of  this  : — 

"  On  the  13th  of  November,  1806,  a  murder  was  committed  in 
Edinburgh  which  made  a  greater  impression  than  any  committed 
in  our  day,  except  the  systematic  murders  of  Burke.  James 
Begbie,  porter  to  the  English  Linen  Company's  Bank,  was  going 
down  the  close  in  which  the  bank  then  was,  on  the  south  side  of 
the  Canongate,  carrying  a  parcel  of  bank-notes  of  the  value  of 
four  or  five  thousand  pounds,  when  he  was  struck  dead  by  a  single 
stab,  given  by  a  single  person  who  had  gone  into  the  close  after 
him,  and  who  carried  off"  the  parcel.  This  was  done  in  the  heart 
of  the  city,  about  five  in  the  evening,  and  within  a  few  yards  of  a 
military  sentinel,  who  was  always  on  guard  there,  though  not 
exactly  at  this  spot,  and  at  the  moment  possibly  not  in  view  of  it. 
Yet  the  murderer  was  never  heard  of.  The  soldier  saw  and  heard 
nothing.  All  that  was  observed  was  by  some  boys  who  were  play- 
ing at  hand-ball  in  the  close  ;  and  all  that  they  saw  was  that  two 
men  entered  the  close  as  if  together,  the  one  behind  the  other,  and 
that  the  front  man  fell,  and  lay  still ;  and  they,  ascribing  this  to 
his  being  drunk,  let  him  lie,  and  played  on.  It  was  only  on  the 
718 


PSYCHICAL    INDICATIONS    AFTER   CRIME.  [§  794. 

entrance  of  another  person  that  he  was  found  to  be  dead,  with  a 
knife  in  his  heart,  and  a  piece  of  paper,  through  which  it  had  been 
thrust,  interposed  between  the  murderer's  hand  and  the  blood.  The 
skill,  boldness,  and  success  of  the  deed  produced  deep  and  univer- 
sal horror.  People  trembled  at  the  possibility  of  such  a  murderer 
being  in  the  midst  of  them,  and  taking  any  life  that  he  chose. 
But  the  wretch's  own  terror  may  be  inferred  from  the  fact  that  in 
a  few  months  the  large  notes,  of  which  most  of  the  booty  was 
composed,  were  found  hidden  in  the  grounds  of  Bellevue.  Some 
persons  were  suspected,  but  none  on  any  satisfactory  ground  ;  and, 
according  to  a  strange  craze  or  ambition  not  unusual  in  such  cases, 
several  charged  themselves  with  the  crime,  who,  to  an  absolute 
certainty,  had  nothing  to  do  with  it." 

§  793.  Confessions,  also,  may  be  self-serving,  and  if  so,  they  are 
valueless.     When  they  would  promote  an  end,  they  lose    From  in- 
all  evidential  value. ^     Under  this  head  fall  the  confes-   t'^'^est- 
sions  of  the  alleged  paramours  of  Anne  Hyde,  Duchess  of  York, 
who,  under  the   belief  that  in  this  way  they  would  please  Charles 
II.,  falsely  confessed  to  adulterous  intercourse  with  the  duchess.^ 

§  79-1.  The  English  common  law  wisely  refuses  to  admit  in  evi- 
dence confessions  made  under  the  influences  of  promises  -p^.^^^  ^^^_ 
or  threats.    It  has  not  been  so  careful,  however,  in  guard-    ^^^  excite- 

...  o       •  ment. 

ing  against  morbid  influences  which  may  elicit  confessions 
in  themselves  untrue.     In  the  life  of  Sir  Christopher  Wren,  pub- 
lished in  1881,  Ave  have  the  following: — 

"  In  the  parish  of  Haseley  is  the  manor  of  Ryecote  (or  Ricot), 
which  by  marriage  had  become  the  property  of  Sir  Henry  Norris, 
Queen  Elizabeth's  ambassador  to  France,  whom  she  created  Baron 
Norris  (or  Norreys)  of  Ryecot,  and  whose  descendants,  now  the 
Earls  of  Abingdon,  possess  the  manor  to  this  day.  During  Dr. 
Wren's  incumbency  a  strange  event  took  place.  Among  the  re- 
tainers of  Lord  Norris  was  an  old  man  who  had  charge  of  the  fish- 
ponds ;  he  had  one  nephew,  who  was  the  heir  of  all  his  uncle's 
possessions  and  savings.  The  nephew  enticed  the  old  man  out  one 
night,  waited  till  he  fell  asleep  under  an  oak  tree,  murdered  him 
by  a  blow  on  the  head,  dragged  the  body  to  one  of  the  ponds,  tied 
a  great  stone  to  the  neck,  and  threw  the  corpse  in.     There  it  lay 

I  Wh.  Ci\  Ev.  8th  ed.  §  627.  2  See,  also,   Shillito's   case,  Alb.  L. 

J.  Oct.  28,  1880. 

719 


§  794.]       MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

jive  weeks,  during  which  time  Lord  Norris  and  all  the  neighbors 
wondered  what  had  become  of  the  old  man.  At  length  the  body- 
was  found  by  the  men  who  were  about  to  clean  the  pond,  and  were 
attracted  to  the  spot  by  the  swarms  of  flies  ;  they  raised  the  corpse 
with  great  difficulty  and  recognized  it.  The  stone  tied  to  the  neck 
was  evidence  of  foul  play,  though  no  one  could  guess  at  the  mur- 
derer. Lord  Norris,  in  order  to  detect  the  criminal  after  the  usual 
manner,  commanded  that  the  corpse,  preserved  by  the  water  from 
the  last  extremity  of  decay,  should  on  the  next  Sunday  be  exposed 
in  the  church-yard,  close  to  the  church  door,  so  that  every  one 
entering  the  church  could  see  and  touch  it.  Tlie  wicked  nephew 
shrunk  from  the  ordeal,  feigning  to  be  so  overwhelmed  with  grief 
as  to  be  unable  to  bear  the  sight  of  his  dearest  uncle.  Lord  Norris, 
suspecting  that  the  old  man  had  been  murdered  by  the  one  person 
whom  his  death  would  profit,  compelled  him  to  come,  and  to  touch 
with  his  finger,  as  so  many  had  willingly  done,  the  hand  of  the 
dead.  At  his  touch,  however,  '  as  if  opened  by  the  finger  of  God, 
the  eyes  of  the  corpse  were  seen  by  all  to  move,  and  blood  to  flow 
from  his  nostrils.'  At  this  awful  witness  the  murderer  fell  on  the 
ground  and  avowed  the  crime,  which  he  had  secretly  committed  and 
the  most  just  judgment  of  God  had  brought  to  light.  He  was  de- 
livered to  the  judge,  sentenced  and  hung." 

Now,  as  a  matter  of  fact,  the  accidental  bleeding  of  a  dead  body 
when  touched  might  throw  an  innocent  party  into  such  a  convulsive 
tremor  as  to  produce  an  untrue  confession.  A  true  confession, 
however,  may  be  elicited  by  terror  under  a  sense  of  supernatural 
imposition.  Mr.  Saville  in  his  work  on  Apparitions^  gives  us  the 
following :  — 

"  In  the  year  1730,  when  Mr.  Harris  was  in  London,  he  received 
a  letter  from  his  confidential  servant,  informing  him  that  the  house 
had  been  broken  into  at  night,  and  that  a  lad  who  had  lately  been 
taken  into  service  had  mysteriously  disappeared.  Mr.  Harris  im- 
mediately left  London  for  his  seat  in  Devonshire,  and  on  his  arrival 
was  told  that  no  alarm  had  been  given  on  the  night  of  the  robbery 
until  the  morning,  when  a  Avindow  opening  on  the  lawn  was  dis- 
covered to  have  been  broken  through,  and  footstep  marks  discovered 
outside.      Morris,  the   butler,  was  found  in  the  plate-room,  half- 

'  London,  1874. 

720 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  794. 

dressed,  tied  to  a  table,  and  with  a  gag  in  his  mouth.  His  own 
account  of  the  robbery  was  that,  having  been  roused  by  some  noise 
in  the  middle  of  the  night,  he  had  got  up  and  gone  down  to  the 
plate-room,  the  door  of  which  had  been  previously  forced ;  that  he 
was  there  seized,  gagged,  and  bound  before  he  could  escape,  or 
even  call  for  help  ;  and  that  there  were  five  or  six  men  altogether, 
none  of  whom  he  recognized,  except  the  lad  lately  taken  into  ser- 
vice, who  had  disappeared  since  that  night. 

"  In  those  days  there  were  no  telegraph  wires,  no  means  by 
which  a  criminal  fleeing  from  the  scene  of  his  crime  could  be  out- 
stripped by  that  wondrous  machinery  which  elicited  the  remark  of 
the  silent  traveller,  '  Them's  the  cords  that  hung  John  Tawell,'  and 
no  detective  or  rural  police.  A  week  had  elapsed  before  Mr. 
Harris  could  reach  his  home.  In  the  mean  while  the  village  con- 
stables had  attempted  to  trace  out  the  robbers,  but  without  success. 
No  clue  to  the  missing  plate  or  the  thieves  could  be  discovered. 
After  making  a  careful  and  strict  search  of  the  premises,  Mr. 
Harris  returned  to  his  court  duties  in  town,  giving  up  all  hope  of 
finding  either  his  lost  property  or  the  criminals. 

"  Some  six  months  passed  away  before  Mr.  Harris  again  visited 
his  country  seat,  where  he  was  received  by  Morris,  and  found 
everything  in  its  usual  state,  nothing  more  having  been  ascertained 
about  the  robbery.  Tired  with  his  long  journey  from  town,  Mr. 
Harris  retired  early  to  bed,  and  soon  fell  into  a  sound  sleep. 

"  In  the  middle  of  the  night  he  suddenly  awoke — as  he  himself 
was  always  wont  to  declare  on  relating  the  incident,  he  was  in  an 
instant  thoroughly  wide  awake,  how  or  why  he  never  could  ex- 
plain— and  he  saw  by  the  light  of  a  small  lamp  burning  in  his  room 
the  lad  who  had  disappeared  on  the  night  when  the  plate  was 
stolen  standing  at  the  foot  of  the  bed.  Mr.  Harris  asked  what  he 
wanted  at  that  time  of  night.  The  boy  beckoned  to  him,  but  made 
no  reply.  Again  he  asked  him  for  what  purpose  he  had  come,  and 
again  the  boy  beckoned  to  him,  and  pointed  to  the  door. 

"  Mr.  Harris  was  as  devoid  of  fear  as  most  men ;  so  he  rose 
from  his  bed,  partly  dressed  himself,  took  his  sword  under  his  arm, 
and  then  followed  the  lad,  still  beckoning  and  pointing  with  his  arm 
out  of  the  room.  His  own  statement  subsequently  of  his  feelings 
was  that  he  was  in  doubt  as  to  whether  the  lad  was  alive  or  an  ap- 
parition ;  that  he  felt  no  fear,  but  only  a  strong  desire  and  deter- 
VOL.  I.— 46  721 


§  794.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

mination  to  see  the  matter  to  an  end.  The  two  went  down  the 
staircase,  and  through  a  side  door,  which  Mr.  Harris  remembers 
to  have  been,  to  his  astonishment,  unlocked  and  open;  they  passed 
into  the  park. 

"  The  lad  led  the  way  for  about  a  hundred  yards  towards  a  very 
large  oak,  the  trunk  of  which  was  surrounded  and  almost  hidden 
by  low  shrubs  and  bushes,  which  had  been  allowed  to  grow  wild 
from  time  immemorial.  Here  the  lad  stopped,  pointed  to  the  ground 
with  his  forefinger,  and  then  seemed  to  pass  towards  the  other  side 
of  the  tree.  It  was  not  a  dark  night,  and  when  Mr.  Harris  fol- 
lowed, as  he  immediately  did,  the  lad  had  vanished  from  his  sight. 
It  seemed  useless  to  search  for  him  ;  and  after  a  little  while  Mr. 
Harris  returned  to  the  house,  fastened  the  door  as  he  let  himself 
in-,  and  went  to  his  room  for  the  remainder  of  the  night. 

"  Before  the  dawn  he  had  resolved  on  his  course  of  action,  and 
having  made  his  arrangements,  he  first  had  the  butler,  Richard  Mor- 
ris, taken  into  custody.  He  then  set  workmen  to  dig  round  the  oak 
tree,  who,  after  a  short  search,  came  upon  the  body  of  the  lad, 
buried  in  his  clothes,  scarcely  a  foot  below  the  surface.  It  was 
evident  that  his  death  was  occasioned  by  strangulation,  as  the  cord 
was  still  fastened  tightly  round  his  neck. 

"  The  butler,  after  attempting  at  first  to  deny  having  had  any 
hand  in  the  business,  soon  made  a  confession  of  the  whole  aifair. 
He  had  two  accomplices  to  help  him  in  the  robbery,  who  had 
carried  off  the  stolen  plate  to  Plymouth,  but  being  interrupted  by 
the  lad  whilst  removing  it,  they  had  murdered  him,  and  buried  his 
body  under  the  tree,  where  it  was  subsequently  discovered  in  the 
way  related  above.  They  then  proceeded  to  tie  and  gag  the  butler, 
as  he  was  found  in  the  pantry.  The  murderers  were  never  traced, 
and  so  escaped  the  penalty  of  their  crime  ;  but  Morris,  the  butler, 
was  tried  at  the  ensuing  Exeter  assizes,  and,  having  pleaded  guilty, 
was  condemned  and  executed." 

The  dream  of  Mr.  Harris,  supposing  it  to  be  accurately  given 
above,  may  be  explained  on  the  ground  of  long  brooding  on  his 
part  over  the  robbery  and  the  disappearance  of  the  lad.  That 
among  the  myriads  of  dreams  on  that  particular  night  one  should 
have  hit  upon  the  truth  with  regard  to  a  current  conspicuous  trans- 
action, is  not  strange.  And  it  is  much  less  strange  that  the  butler, 
under  the  shock  of  this  apparently  supernatural  interposition, 
722 


PSYCHICAL   INDICATIONS    AFTER   CRIME. 


[^  795. 


should  have  divulged  the  secret  Avith  which  his  conscience  was 
oppressed.^ 

§  795.    Peculiar  scrutiny  should   be   applied    to   confessions  of 
adultery  made  by  women  when  under  peculiar  nervous    j,^^^  ^^^_ 
or  physical  excitement.     The  circumstances  that  led  to    vous  de- 

^    ''  .  .      rangement. 

Mrs.  Tilton's  confession,  as  brought  out  m  the  suit 
against  Mr.  Beecher,  and  the  weight  to  be  attached  to  that  con- 
fession, have  been  the  subjects  of  the  copious  criticism  of  eminent 
counsel  on  both  sides  of  that  remarkable  trial.  But  whatever  may 
be  said  as  to  that  particular  case,  there  can  be  little  doubt  that  the 
confessions  of  Mrs.  Burch,  as  put  in  evidence  in  the  Burch  divorce 
case,  were  the  result  of  certain  insane  delusions  on  her  part,  pro- 
duced by  morbid  excitement,  into  which  she  was  thrown  by  her 
husband's  treatment.^     And  the  same  criticism  may  be  applied  to 


'  The  Pall  Mall  Gazette,  in  an  article 
published  in  1875,  gives  the  follow- 
ing : — 

"A  murder  committed  three  years 
ago  at  Adrianople  has  lately  been 
brought  to  light  under  singular  cir- 
cumstances. The  victim  was  a  Cretan 
trader,  who  came  to  seek  his  fortunes 
at  Adrianople,  bringing  with  him  a 
capital  of  £800.  Instead,  however,  of 
gaining  a  fortune  with  this  amount,  it 
cost  him  his  life,  for  it  tempted  the 
keeper  of  a  khan  where  he  lodged, 
named  Yovantcho,  to  plan  his  assassi- 
nation. Yovantcho,  who  was  of  a  con- 
fiding nature,  imparted  this  scheme  to 
two  intimate  friends  and  to  his  ser- 
vant, who  readily  entered  into  the 
spirit  of  the  affair.  The  Cretan  trader 
was  therefore  invited  to  a  supper, 
which  was  served  in  the  Bulgarian 
school,  where,  having  been  hospitably 
plied  with  wine  till  he  became  drunk, 
he  was  garroted  and  strangled.  His 
body  was  then  pitched  into  a  well,  and 
thus  closed  the  evening's  entertain- 
ment. The  murdered  man  had  a  son, 
who,  strange  to  say,  observing  the 
mysterious  disappearance  of  his  father, 
gave  notice  of  the  fact  to  the  police ; 


but,  as  is  not  uncommon  in  murder 
cases  even  in  this  country,  even  '  the 
most  active  and  intelligent'  officers  of 
the  force  failed  to  discover  the  culprits. 
The  matter  was  soon  forgotten,  and 
probably  would  have  remained  forever 
buried  in  oblivion,  but  that  Yovant- 
cho's  servant  the  other  day  killed  a 
man  in  a  tavern,  and  was  arrested. 
For  some  time  his  master  sent  him 
daily  a  supi^ly  of  luxuries  not  to  be 
found  in  the  prison  bill  of  fare,  but  at 
last  imprudently  discontinued  this  de- 
licate attention.  The  imprisoned  ser- 
vant, grieved  at  his  master's  ingrati- 
tude, told  to  the  vali  the  story  of  tlie 
murder  in  which  he  had  borne  an 
humble  part.  The  well  of  the  Bul- 
garian cemetery  was  immediately 
emptied  and  searched  ;  the  bones  and 
some  of  the  clothing  of  the  missing 
Cretan  trader  were  discovered.  Yo- 
vantcho and  his  two  friends  were 
arrested  ;  they  are  now  on  their  trial, 
and  some  interesting  revelations  are  ex- 
pected toucliing  the  fate  of  other  per- 
sons besides  the  trader  who  liave  at  va- 
rious times  mysteriously  disappeared." 
2  Donavan's  Modern  Jury  Trials,  N. 
Y.,  1881,  p.  523. 

723 


§  797.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

Mrs.  Dalton's  confession,  as  put  in  evidence  in  the  famous  divorce 
case  in  which  she  was  defendant,  and  which  was  the  occasion  of  one 
of  the  most  brilliant  speeches  of  Mr.  Choate.^ 

§  79G.    Somewhere  between  sane  and  insane  delusions  may  be 

classed  those  of  witches.     So  far  as  concerns  the  spirit- 

ie2:ed  su-       ^^^^   sin,  they  had  no  doubt  a  foundation  of  fact.      The 

pernaturai     loosest  dcist  will  admit  that  there  are  exterior  agencies, 

possession.      _  _  _  o  7 

in  the  shape  of  temptations,  which   assault  the  human 

heart,  and  with  which  it  is  a  sin  to  tamper.  The  Christian  ascribes 
these  temptations  to  the  direct  agency  of  Satan.  Now  let  us  sup- 
pose the  temptation  of  jealousy.  A  rival  is  hated,  and  his  death 
vehemently  agonized  for.  Here  is  a  positive  sin  of  the  heart.  Let 
the  law  ascribe  this — as  the  common  law  did  and  does — to  the  in- 
stigation of  the  devil ;  and  let  a  tampering  with  this  temptation,  as 
a  sort  of  commerce  with  the  evil  one,  be  made  a  specific  offence,  as 
it  once  was.  And  add  to  this  the  spites  arising  from  the  petulance 
of  old  age.  Here  you  have  a  series  of  subjective  crimes  which  may 
be  confessed  with  truth. 

But  the  witches  did  not  stop  here.  They  confessed  to  all  sorts 
of  consequential  overt  acts.  Their  machinations  had  taken  effect. 
Infants  had  melted  away  before  their  evil  eye,  as  wax  before  the 
fire.  The  old  had  withered  and  wrinkled  as  the  same  glance  fell 
on  them.  Hearts  which  loved  were  alienated — hearts  that  believed 
were  made  to  curdle  in  unbelief.  Mothers  dropped  their  untimely 
fruit.  The  warrior's  courage  forsook  him  in  battle.  Cattle  took 
sick,  and  pains,  through  the  witches'  magic,  tore  and  WTung  the 
frames  of  those  who  crossed  the  witches'  path. 

§  797.    Now  many  of  these  confessions  were  the  result  of  mere 

insanity.     But  it  would  be  wrong,  however,  not  to  re- 
Notneces-  .    -^  .         ,  „     ,  .      .  -,  ^  '   ,.    . 

sariiy  in-       cognize  m  Others  ot  them  mcidents  01   that  divine  eco- 

^^^^^'  noray   which    permits    a    superstitious    foreboding    and 

sometimes  monomaniac  realization  of  the  consequences  of  crime, 

among  the  results  of  the  criminal  conception.    The  mind  that  revels 

in  intended  guilt  is  apt,  in  the  delirium  of  remorse,  if  it  be  not  in 

the  development  of  the  imagination  under  the  fever  of  a  wounded 

conscience,  to  see  the  consequences  which  that  guilt  would  have 

•  Great  Speeches  by  Great  Lawyers,  New  York,  1881. 

724 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  798. 

produced.  There  is  never  an  entire  orphanage  of  the  deed  from 
the  intent.  There  are  few  who  cannot  recall  waking  in  an  agony 
of  terror  at  the  picture  brought  before  them  in  a  dream,  of 
the  consummation  of  some  unlawful  purpose.  They  dreamed 
they  did  the  thing  over  which  they  were  brooding,  but  from 
which  they  were  held  back  by  want  of  opportunity  or  fear  of  con- 
sequences. 

§  798.    Now  the  policy  which  permitted  the  execution  of  these 
poor  wretches,  without  proof  of  a  corpus  delicti,  was. 

Retributive 

no  doubt,  barbarous  and  wrong,  isut  this  should  not  element  in 
lead  us  to  refuse  to  recognize,  as  a  part  of  the  divine  ^'^^'■''*  ^™- 
economy  of  rewards  and  punishments,  this  very  self-punishing  in- 
cident of  that  criminal  purpose  on  which  the  mind  has  consciously 
and  determinedly  revelled.  The  intent  brings  its  phantom  conse- 
quences with  it.  Sometimes  they  continue  phantoms,  but  they  do 
not  the  less  torture  or  degrade  the  mind  they  haunt.  They  may 
torture  it  by  the  presence  of  a  tribe  of  avenging  shades,  or  they 
may  degrade  it  by  introducing  into  it  a  progeny  of  foul  and  pol- 
luted consciousnesses.  The  monastic  system  has  brought  many 
witnesses  to  this.  So  it  was  with  the  phantoms  of  sensuality  of 
Jerome,  and  the  phantoms  of  pride  of  Simon  Stylites.  Wilkie,  in 
one  of  his  drawings,  brings  before  us — and  no  one  who  has  studied 
it  can  forget  it — a  copy  of  a  Spanish  picture,  where  a  young  monk, 
feverish  and  macerated  with  the  internal  gnawings  of  a  brood  which 
had  been  hatched  in  his  heart  in  the  heat  of  mere  permitted  con- 
ceptions, appeals  for  pity  and  solace  to  an  aged  confessor ;  and 
the  agonized  expression  of  the  suppliant,  and  the  sad,  wise  sym- 
pathy of  the  confessor,  tell  the  story  but  too  plainly.  But  the 
story  is  not  one  of  the  confessional  alone,  but  of  every  heart  which, 
before  whatever  throne,  pours  forth  the  burden  of  the  sin  of  pam- 
pered desire.  And  every  lunatic  asylum  bears  witness  to  the  same 
fact  that  in  the  cases  of  imbecility  in  which  unexecuted  purposes 
of  sin — purposes  which  had  only  been  thought  over,  but  at  the 
time  nursed — are  babbled  out,  and  with  all  their  coarse  conse- 
quences told  by  the  tongue  of  old  age.  The  muscular  hand  of  youth 
kept  the  curtain  down,  and  the  secret  though  nourished  sin  was 
thus  concealed.  But  when  the  power  of  self-restraint  weakened — 
when  the  cords  and  rings  of  the  curtain  decayed — then  the  secluded 
contents  of  the  heart — these  unexecuted  sins,  now  exhaling  phan- 

725 


§  799.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSTCHOLOaiCALLT. 

toms  by  their  very  exposure — rise  and  spread  themselves  in  their 
deformity  before  the  public  gaze.  Sometimes  overt  acts  follow, 
and  we  hear  of  sudden  falls  in  old  and  heretofore  unblamed  men — 
falls,  however,  which  were  not  sudden,  for  there  were  back-stairs 
in  the  heart  down  which  the  culprit  had  been  for  years  descending. 
Sometimes  the  act  is  one  of  imagination  only,  but  is  talked  out  in 
the  gross  familiarity  of  senility.  But,  however  this  phenomenon 
may  exhibit  itself,  it  is  a  part  of  that  grand  system  of  Providence, 
by  which  guilt  is  lodged  in  the  intent,  and  by  which,  as  a  compen- 
sation for  human  law,  wdiich  judges  of  the  overt  acts  alone,  the 
intent  incloses  in  itself  its  own  retribution.  The  thing  is  patent 
in  the  history  of  society,  and  is  meant  to  be  so,  as  a  mark  of  the 
divine  purpose — as  a  deterrer — as  an  avenger — as  an  element  to 
be  received  into  consideration  in  adjusting  the  balance  of  human 
jurisprudence. 

§  799.    But  there  are  cases  in  which  these  delusive  confessions 
PJ.QJQ  may  be  the  offspring  of  pure  mania,  though  in  such  the 

mania.  delusion  must  be  proved  by  the  mania,  not  the  mania  by 

the  delusion.  Bunyan  speaks  of  such  a  case,  half  pityingly,  half 
doubtingly  :  — 

"  Since  you  are  entered  upon  stories,  I  also  will  tell  you  one, 
the  which,  though  I  heard  it  not  w^ith  my  own  ears,  yet  my  author 
I  dare  believe.  It  is  concerning  one  old  Tod,  that  was  hanged 
about  twenty  years  ago  or  more,  at  Hartford,  for  being  a  thief. 
The  story  is  this  :  At  a  summer  assize  holden  at  Hartford,  while 
the  judge  was  sitting  upon  the  bench,  comes  this  old  Tod  into  the 
court,  clothed  in  a  green  suit,  with  his  leathern  girdle  in  his  hand, 
his  bosom  open,  and  all  in  a  dung  SAveat  as  if  he  had  run  for  his 
life  ;  and  being  come  in,  he  spake  aloud  as  follows :  '■My  lord^ 
said  he,  '-liere  is  the  veriest  rogue  that  breathes  iqjon  the  face  of  the 
earth;  I  have  been  a  thief  from  a  child  ;  ivhen  I  was  but  a  little 
one  I  gave  myself  to  rob  orchards,  and  to  do  other  such  like  ivicked 
things,  and  I  have  continued  a  thief  ever  since.  My  lord,  there 
has  not  been  a  robbery  committed  this  many  years,  tvithin  so  many 
miles  of  this  place,  but  I  have  either  been  at  it  or  privy  to  it.''  The 
judge  thought  the  fellow  was  mad ;  but  after  some  conference  with 
some  of  the  justices,  they  agreed  to  indict  him,  and  so  they  did,  of 
several  felonious  actions,  to  all  of  which  he  heartily  confessed  guilty, 
and  so  was  hanged  with  his  wife  at  the  same." 
726 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  800. 

"  I  murdered  ray  wife,  some  years  ago,"  says  the  imnate  of  an 
insane  asylum  to  a  visitor.  "  It  is  necessary  that  I  should  be 
placed  here  in  confinement."  And  then  the  supposed  murderer 
goes  on  to  relate  with  great  equanimity  and  circumstantiality  the 
details  of  the  murder.  But  the  wife  was  not  murdered  at  all,  and 
is  still  alive. 

So  the  publication  of  a  conspicuous  homicide  is  apt,  as  we  have 
seen,  to  generate  a  series  of  pretenders  to  the  honor  of  being  the 
perpetrator.  Why  should  there  not  be  several  Charlotte  Cordays 
among  a  thousand  patients,  as  well  as  several  Robespierres  ? 

§  800.  Then  comes  the  epidemic  confession — the  strangest  of  all. 

We  have  several  instances  of  this  in  the  German  monkish 

Fro  01  e  pi- 
chronicles  of  the  twelfth  and  thirteenth  centuries.     True    demic  in- 

purposes,  as  well  as  feigned  facts,  are  often  thus  con-  ^^°^®- 
fessed.  Whole  communities,  acting  under  that  singular  fascination 
which  mind  in  the  aggregate  often  acquires  over  mind  in  the  indi- 
vidual, have  thus  come  forward  in  sackcloth  and  ashes  and  accused 
themselves  sometimes  falsely  of  the  act,  sometimes  perhaps  truly 
of  the  intent.  Nor  are  these  epidemics  peculiar  to  a  superstitious 
age.  Dr.  Southwood  Smith,  in  his  lectures  on  Forensic  Medicine, 
brings  an  instance  in  the  present  century.  Captain  Pigot,  during 
the  naval  struggles  between  France  and  England  under  the  empire, 
commanded  the  Hermione  frigate.  A  mutiny  took  place,  and  he 
and  a  portion  of  his  officers  were  murdered  very  barbarously.  "  One 
midshipman  escaped,  by  whom  many  of  the  criminals,  who  were 
afterwards  taken  and  delivered  over  to  justice,  one  by  one,  were 
identified.  Mr.  Finlaison,  the  government  actuary,  who  at  that 
time  held  an  official  situation  at  the  admiralty,  states :  '  In  my 
own  experience  I  have  known,  on  separate  occasions,  more  than  six 
sailors  who  voluntarily  confessed  to  having  struck  the  first  blow  at 
Captain  Pigot.  These  men  detailed  all  the  horrid  circumstances  of 
the  mutiny  with  extreme  minuteness  and  perfect  accuracy  ;  never- 
theless not  one  of  them  had  ever  been  in  the  ship,  nor  had  so  much 
as  seen  Captain  Pigot  in  their  lives.  They  had  obtained  by  tradi- 
tion from  their  mess-mates  the  particulars  of  the  story.  When  long 
on  a  foreign  station,  hungering  and  thirsting  for  home,  their  minds 
became  enfeebled  ;  at  length  they  actually  believed  themselves 
guilty  of  the  crime  over  which  they  so  long  brooded,  and  submitted 

727 


§  803.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY, 

with  a  gloomy  pleasure  to  being  sent  to  England  in  irons  for 
judgment.'  " 

§  801.  Finally  we  may  notice  confessions  from  weariness  of  life — 

"  I  am  foot-sore,  and  very  weary, 
And  I  travel  to  meet  a  friend." 

That  friend  is  death,  and  the  frame  of  mind  which  thus 
weariness  seeks  it  IS  very  apt  to  engender  phantoms  of  blood- 
of  life.  guiltiness  which  soon  appear  as  realities.     Thus,  cases 

have  not  been  unfrequent  where  women,  deserted  by  those  in  whom 
they  trusted,  and  sick  of  living,  have  accused  themselves,  and  this 
perhaps  sincerely  though  falsely,  of  the  murder  of  infants  whom 
they  never  bore,  or  who  died  naturally.  By  one,  who  was  thus 
life-weary,  was  the  whole  scene  described  with  the  most  touching 
minuteness — the  wailing  of  the  young  child — its  piteous  look — its 
burial  in  a  little  grave  under  the  matted  and  crisp  spires  at  the  foot 
of  a  pine.  Yet  no  one  had  been  buried  there,  nor  had  the  mother 
aught  to  do  with  the  child's  death. 

§  802.  In  this  line  may  also  be  noticed  a  false  confession  as  a 
As  a  mode  Congenial  method  of  suicide.  Death  is  sought  in  a  way 
of  suicide.  y^\^{Q,\^  niay  best  correspond  to  the  then  morbid  condition 
of  the  brain ;  in  a  way  which  involves  others,  though  innocently  on 
their  part,  in  the  self-murder,  and  makes  them  strike  the  blow.  "  I 
fling  myself,  not  into  the  river,  nor  into  the  abyss,  but  upon  the 
scaflFold,"  Thus  Lord  Clarendon  tells  us  of  a  Frenchman,  named 
Hubert,  who  was  convicted  and  executed  on  his  confession  of  hav- 
ing occasioned  the  great  fire  in  London,  "  although,"  says  that 
sagacious  jurist  and  historian,  "  neither  the  judges  nor  any  one 
present  believed  him  guilty,  but  that  he  was  a  poor,  distracted 
wretch,  weary  of  life,  and  who  chose  to  part  with  it  in  this  way."^ 

§  803.  Before  a  confession  be  acted  upon,  therefore,  it  should  be 
exposed  to  the  tests  which  have  been  above  mentioned. 
condition  Let  it  be  remembered,  to  sum  up  in  the  words  of  a  great 
biiitv^^"  civilian,  that  "  there  sometimes  lurks,  under  the  shadow 
of  an  apparent  tranquillity,  an  insanity,  which  impels  men 
readily  to  accuse  themselves  of  all  kinds  of  iniquity.  Some,  de- 
luded by  their  imagination,  suspect  themselves  of  crimes  which  they 
have  never  committed.     A  melancholy  temperament,  the  tcedium 

'  Continuation  of  Lord  Clarendon's  Memoirs,  written  by  himself,  p.  352. 

728 


PSYCHICAL    INDICATIONS    AFTER    CRIME. 


[§  80^. 


vitce,  and  an  unaccountable  propensity  to  their  own  destruction, 
urge  some  of  the  most  false  confessions  ;  whilst  they  w^ere  extracted 
from  others  by  the  dread  of  torture,  or  the  tedious  misery  of  the 
dungeon."^ 

§  804.  The  last  motive  rarely  exists  among  ourselves,  but  the 
first  may  be  not  infrequent.     The  first  precaution  is  to    „ 

''  i-  r  Corpus 

have  absolute  proof  of  the  corpus  delicti.  This,  however,  delicti  to  be 
is  not  enough.  There  may  be  abundant  proof  that  a 
crime  was  committed,  and  yet  the  confession  may  be  false.  We 
must  exact  proof  that  connects  the  supposed  criminal  with  the  actual 
crime.  We  must  examine  into  his  condition  of  mind,  and  see  how 
far  insanity,  or  remorse,  or  bravado,  or  weariness  of  life,  or  delu- 
sion may  have  influenced  him.  When  these  tests  are  applied,  we 
are  ready  to  take  the  confession  as  impressed  with  its  true  signifi- 
cance.    It  thus  becomes  a  definite  form  of  proof. ^ 


'  Hein.  Ex.  18,  §  6.  The  subject, 
in  its  technical  relation,  is  examined 
at  large  in  Wh.  Cr.  Ev.  8th  ed.  §§  753 
et  seq. 

2  "To  guard  against  false  confes- 
sions," says  Jeremy  Bentham,  "the 
two  following  rules  ought  to  be  ob- 
served : — 

"  1.  One  is,  that,  to  operate  in  the 
character  of  direct  evidence,  confession 
cannot  be  too  particular.  In  respect 
of  all  material  circumstances,  it  should 
be  as  particular,  as,  by  dint  of  interro- 
gation, it  can  be  made  to  be.  Why  so  ? 
Because  (supposing  it  false)  the  more 
particular  it  is,  the  more  distinguish- 
able facts  it  will  exhibit,  the  truth  of 
which  (supposing  them  false)  will  be 
liable  to  be  disproved  by  their  incom- 
patibility with  any  facts,  the  truth  of 
which  may  have  come  to  be  established 
by  other  evidence.  The  greater  the 
particularity  required  on  the  part  of 
the  confession,  the  greater  is  the  care 
taken  of  the  confessionalist — the  great- 
er the  care  taken  to  guard  him  against 
undue  conviction,  brought  upon  him 
by  his  own  imbecility  and  imprudence. 

"2.  The  other  rule  is,  that,  in  re- 


spect of  all  material  facts  (especially 
the  act  which  constitutes  the  physical 
part  of  the  offence),  it  ought  to  compre- 
hend a  particular  designation  in  respect 
of  the  circumstances  of  time  and  place. 
For  what  reason  ?  For  the  reason  al- 
ready mentioned  :  to  the  end  that,  in 
the  event  of  its  proving  false  (a  case 
not  impossible,  though  in  a  high  degree 
rare  and  improbable),  facts  may  be 
found  by  which  it  may  be  proved  to  be 
so.  '  I  killed  such  a  man'  (says  the 
confessionalist,  mentioning  him)  '  on 
such  a  day,  at  such  a  place.'  '  Impos- 
sible' (says  the  judge  sjDeaking  from 
other  evidence),  'on  that  day  neither 
you  nor  the  deceased  were  at  that 
jjlace.' 

"  But  time  and  place  are  both  indefi- 
nitely divisible.  To  what  degree  of 
minuteness  shall  the  division  be  en- 
deavored to  be  carried  for  this  jjurpose? 
A  particular  answer  that  shall  suit  all 
cases  cannot  be  given.  The  end  in 
view,  as  above  stated,  must  be  con- 
sidered, and  compared  with  the  par- 
ticular circumstances  of  the  case,  in 
regard  to  either  species  of  extension, 
ere  the  degree  of  particularity  proper 

729 


§  805.]       MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

2.  Nervous  tremor. 

§  805.  The  Countess  of  Somerset,  when  arrested  on  the  charge 

of  the   murder  of    Sir  Thomas  Overbury,   laughed    off 
"Nervous 
tremor  the  possibility  of  guilt  with  that  fascination  which  so 

sequent  on     ©i^inently  belonged  to  her.     It  was  hard  to  believe  that 
sense  of        underneath  that  young  and  beautiful  brow,  so  cruel  and 

guilt.  /      . 

artful  an  assassination  could  have  been  planned.  No 
alarm  was  shown,  no  cloud  of  manner  by  which  the  slightest  trouble 
of  conscience  was  betrayed.  So  she  bore  herself  until  she  found 
she  was  to  be  taken  to  the  Tower.  There  Sir  Thomas  Overbury, 
himself  but  a  young  man,  and  one  whom  she  had  frequently  and 
kindly  met,  had  just  died  in  unspeakable  torments.  There  she  had 
sent,  under  the  guise  of  kindness,  the  poisoned  tarts  which  caused 
his  death.  One  great  terror  grew  over  her — that  she  should  be 
taken  to  his  room — that  she  should  have  to  pass  lonely  nights  there, 
and  in  that  bed.  At  last  her  nerves,  wrought  up  to  their  highest 
dissimulation,  snapped  asunder.  She  sank  prostrate  and  wretched 
to  the  ground,  and  then  followed  her  confession. 

From  this  nervous  tremor  arose  the  habit  we  have  already 
noticed,  of  requiring  supposed  criminals  to  touch  the  corpse  of  the 
murdered  man.  With  this  was  no  doubt  joined  a  superstition  that 
the  corpse  would  bleed  when  it  felt  the  murderer's  hand.  But  this 
was  but  collateral  to  the  belief  that  in  this  way  the  conscience  of 
the  guilty  party  would  be  exposed  to  a  test  which  might  prove 
efficacious.  It  is  true  that  when  the  criminal  has  time  to  nerve 
himself  for  the  purpose,  he  is  able,  if  he  has  much  courage  of 
manner,  to  bear  himself  calmly  and  impassively.  This  was  the 
case  witli  Major  Strangways,  in  1657,  who,  on  being  required  to 
take  the  deceased  by  the  hand  and  touch  his  wounds,  did  so  with  a 

to  be  aimed  at  by  the  interrogatories  is  not  equally  obsequious  ;  the  house  ? 
can  be  marked  out.  Under  the  head  of  yes  ;  if  the  supposed  scene  of  the  sup- 
time,  the  English  law,  in  the  instru-  posed  transaction  be  a  house ;  the 
ment  of  accusation,  admits  of  no  other  street  ?  yes ;  if  the  scene  were  in  a 
latitude  than  what  is  included  in  the  street ;  but  a  field,  a  road,  a  common, 
compass  of  a  day.  The  nature  of  things  a  forest,  a  lake,  a  sea,  the  ocean  ;  any 
did  not,  in  this  instance,  render  uni-  of  these  may  have  been  the  scene." 
formity  impossible;  the  parts  into  (Bentham,  Rationale  of  Jud.  Ev.,  Book 
which  time  is  divided  are  uniform  and  v.  chap.  vi.  §  3.) 
determinate.     Place — relative  space — 

730 


PSYCHICAL   INDICATIONS   AFTER    CRIME.  [§  80fi. 

demeanor  undisturbed.  It  is  true,  also,  that  others,  by  a  powerful 
effort  of  nervous  imagination,  may  fling  themselves  into  the  char- 
acter of  an  innocent  person,  in  the  same  way  that  Mrs.  Siddons 
could  fling  herself  into  the  character  of  Queen  Catharine,  or  Talma 
into  that  of  Hamlet.  "  You  looked  as  if  you  were  really  metamor- 
phosed, and  not  merely  trying  to  appear  so."  "  I  made  myself 
believe  that  the  audience  was  divested  of  all  flesh — mere  spirits,  and 
I  a  spirit  speaking  to  them,"  was  Talma's  reply.  But  this  leap 
requires  some  little  breadth  of  base  from  which  to  start.  The  mind 
cannot  rise  up  to  it  suddenly.  The  murderer  who  might,  if  a  due 
interval  be  given,  nerve  himself  to  the  work,  often  collapses  if  sud- 
denly brought  in  contact  with  the  deceased.  The  old  result  is 
reversed  ;  for  in  former  times  it  was  the  dead  man  that  gave  sign  ; 
now  it  is  the  living.  An  English  case  to  this  effect  has  been  already 
noticed.  Another  is  reported  in  this  country.  A  man  named  John- 
son, under  trial  for  murder  in  New  York,  in  1824,  Avas  taken  out  of 
his  cell  to  the  hospital  by  the  high  constable,  and  required  to  touch 
the  murdered  body.  He  did  so,  but  the  touch  broke  the  texture  of 
the  murderer's  dissimulation.  He  fell  into  a  nervous  tremor,  which 
resulted  in  a  confession.  This  confession,  when  he  recovered,  he 
sought  to  retract ;  and  his  counsel  endeavored  to  exclude  it  in  court, 
on  the  ground  that  it  had  been  improperly  obtained.  But  the 
judges  overruled  the  objection,  without  in  any  way  objecting  to  the 
process.^ 

§  806.  William  Peterson,  a  young  man  of  only  about  nineteen, 
but  of  the  most  extraordinary  self-control,  was  charged,  Peterson's 
in  the  Memphis  District,  Tennessee,  in  1852,  with  the  ^^'^^^■ 
highway  robbery  and  murder  of  Thomas  Merriweather.  No  feature, 
in  this  very  remarkable  case,  is  more  remarkable  than  the  mastery 
over  his  nervous  system  which  had  been  obtained  by  this  young 
but  desperate  criminal.  An  almost  girlish  delicacy  and  fairness  of 
skin  and  features  covered  an  iron  energy  of  muscle  and  nerve  that 
was  able  to  brace  itself  against  any  expected  attack.  Yet  even 
this  power  gave  way.  Closely  resembling  the  murdered  man — so 
closely  as  to  produce  mistakes  between  the  two — was  his  brother, 
William  Merriweather.  The  prisoner,  not  knowing  he  was  sus- 
pected, was  lying  asleep  in  his  bed  near  midnight.      His  chamber 

I  People  V.  Jolinson,  2  Wheeler's  C.  C.  378. 

731 


§  807.]       MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

was  suddenly  entered  by  the  officers  charged  with  his  arrest.  He 
betrayed  no  sign,  though  the  slight  trembling  of  the  eyelids  showed 
that  his  sleep  was  feigned.  "  I  will  go  with  you  readily,"  and  he 
got  up  quietly  to  meet  the  charge.  But  suddenly  his  eyes  fell  on 
a  figure  which  may  well  have  recalled  to  him  the  dead  man,  for 
there,  darkened  in  the  background,  stood  William  Merriweather, 
pale  and  corpse-like,  in  the  exhaustion  and  excitement  of  his  long 
search  for,  and  final  discovery  of,  his  brother's  murderer.  It  was 
as  if  the  dead  and  living  were  confronted.  Then,  as  in  former 
cases,  the  living  broke  down.  Peterson's  composure  could  not 
stand  the  trial.  The  policy  of  his  intended  defence  was  that  he 
did  not  know  the  deceased  ;  but  as  he  looked  at  the  brother  his 
"  head  dropped  upon  his  breast,  and  he  sighed  deeply."  A  par- 
tial confession  and  a  conviction  followed.^ 

§  807.  The  following  incident  is  given  in  Parton's  Life  of  Burr. 
On  a  trial  for  murder,  the  prisoner  was  defended  jointly  by  Colonel 
Burr  and  General  Hamilton.  "  At  first,  the  evidence  against  the 
prisoner  seemed  conclusive,  and  I  think  Burr  himself  thought  him 
guilty.  But  as  the  trial  proceeded,  suspicions  arose  against  the 
principal  witness.  Colonel  Burr  subjected  him  to  a  relentless 
cross-examination,  and  he  became  convinced  that  the  guilt  lay 
between  the  witness  and  the  prisoner,  with  the  balance  of  proba- 
bility against  the  witness. 

"  The  man's  appearance  and  bearing  were  most  unprepossessing. 
Besides  being  remarkably  ugly,  he  had  the  mean  down  look,  which 
is  associated  with  the  timidity  of  guilt.  Hamilton  had  addressed 
the  jury  with  his  usual  fluent  eloquence,  confining  his  remarks  to 
the  vindication  of  the  prisoner,  without  alluding  to  the  probable 
guilt  of  the  witness.  The  prosecuting  attorney  replied,  and  it  was 
now  Burr's  province  to  say  the  last  word  for  the  prisoner.  But 
the  day  had  worn  away,  and  the  court  took  a  recess  till  candlelight. 
This  was  extremely  annoying  •  to  Colonel  Burr,  as  he  meditated 
enacting  a  little  scene,  to  the  success  of  which  a  strong  light  was 
indispensable.  He  was  not  to  be  balked,  however.  Through  one 
of  his  satellites,  of  whom  he  always  had  several  revolving  around 
him,  he  caused  an  extra  number,  of  candles  to  be  brought  into  the 
court-room,  and  to  be  so  arranged  as  to  throw  a  strong  light  upon 

1  See  this  case  reported,  voL  ii. 

732 


PSYCHICAL    INDICATIONS    AFTER    CKIME.  [§  809. 

a  certain  pillar,  in  full  view  of  the  jury,  against  which  the  sus- 
pected witness  had  leaned  throughout  the  trial.  The  court  reas- 
sembled, the  man  resumed  his  accustomed  place,  and  Colonel  Burr 
rose.  With  the  clear  conciseness  of  which  he  was  master,  he  set 
forth  the  facts  which  bore  against  the  man,  and  then,  seizing  two 
candelabras  from  the  table,  he  held  them  up  towards  him,  throwing 
a  glare  of  light  upon  his  face,  and  exclaimed  : — 

"  '  Behold  the  murderer,  gentlemen  !' 

"  Every  eye  was  turned  upon  the  wretch's  ghastly  countenance, 
which,  to  the  excited  multitude,  seemed  to  wear  the  very  expression 
of  a  convicted  murderer.  The  man  reeled,  as  though  he  had  been 
struck  ;  then  shrunk  away  behind  the  crowd,  and  rushed  from  the 
room.  The  effect  of  this  incident  was  decisive.  Colonel  Burr  con- 
cluded his  speech,  the  judge  charged,  the  jury  gave  a  verdict  of 
acquittal,  and  the  prisoner  was  free." 

§  808.  The  longer  the  prior  tension  the  more  sudden  and  com- 
plete the  crash.  When  Dr.  Webster  was  brought  by  the  -Webster's 
police  to  the  medical  college,  where  for  so  many  days  he  c'^'^^- 
had  with  great  external  composure  been  covering  up  the  proofs  of 
his  guilt,  his  whole  system,  at  the  recurrence  of  the  scene  under 
these  new  auspices,  gave  way.  "  He  seemed,"  said  one  of  the 
witnesses,  "  like  a  mad  creature.  When  the  water  was  put  toward 
him,  he  would  snap  at  it  with  his  teeth,  and  push  it  away  with  great 
violence,  without  drinking,  as  if  it  were  offensive  to  him."^  "  Dr. 
Webster  appeared  to  be  very  much  agitated,"  says  another  ;  "  sweat 
very  much,  and  the  tears  and  sweat  ran  down  his  cheeks  as  fast  as 
they  could  drop."^  "  The  perspiration  was  so  excessive  as  to  wet 
through  his  clothing. "^ 

§  809.  Richard  Weston  was  sub-keeper  of  the  tower  at  the  time 
of  the  poisoning  of  Sir  Thomas  Overbury.  He  was  the  westoii's 
first  person  tried  for  that  crime.  When  the  bill  of  in-  '^'^®®- 
dictment  was  returned,  as  we  learn  from  Mr.  Amos's  "  Great 
Oyer,"  all  eyes  were  turned  to  the  bar,  where  the  wretched 
prisoner  was  brought  up.  He  was  a  man  of  about  sixty  years  of 
age.  His  forehead  was  wrinkled  with  age,  his  hair  sprinkled  with 
gray.     His  countenance,  though  not  wanting  in  a  certain  degree  of 

'    Bemis's    Report    of  the   Webster         2  Ibid.  pp.  120,  121. 
Case,  p.  60.  3  ibjd.  p.  193. 

733 


§  810.]      MENTAL   UNSOUNDNESS   CONSIDEEED    PSYCHOLOaiCALLT. 

comeliness,  had  a  stern  and  grim  expression,  and  was  now  distorted 
with  terror.  His  face  was  deadly  pale,  his  lips  quivei'ed,  and  his 
knees  tottered  as  he  stood  at  the  bar  while  the  indictment  was  read. 
It  charged  him  with  having  murdered  Sir  Thomas  Overbury  in  the 
Tower  of  London  by  administering  various  poisons — rosalgar,  white 
arsenic,  and  mercury  sublimate — on  four  diflFerent  occasions.  The 
prisoner  was  then  asked,  in  the  usual  form,  whether  he  was  guilty 
of  the  murder,  yea,  or  no.  The  poor  wretch,  instead  of  answering, 
became  agitated,  and  in  his  distress  screamed  several  times,  "  Lord 
have  mercy  on  me  ;  Lord  have  mercy  on  me."  At  length  he 
stammered  out,  "  Not  guilty."  But,  when  asked  how  he  would  be 
tried,  instead  of  answering  in  the  usual  form,  "  By  God  and  my 
country,"  he  exclaimed  he  referred  himself  to  God — he  would  be 
tried  by  God  alone.  And  though  the  chief  justice  spent  an  hour 
in  persuading  him  to  put  himself  upon  his  country,  he  could  get  no 
other  answer  out  of  him  than  that  he  referred  himself  to  God. 

§  810.  The  Earl  of  Essex  was  the  last  favorite  of  Queen  Eliza- 
Queen  beth.  Young,  brilliant,  of  remarkable  fascination  both 
Elizabeth.  ^^^  person  and  mind,  he  held,  on  the  queen's  affections, 
hereditary  claims  of  which  his  personal  graces  may  well  have  re- 
minded her.  For — except  the  two  Careys — he  was  her  only  male 
relative  on  her  mother's  side  ;  and,  as  she  looked  on  his  handsome 
person,  and  studied  his  ardent  though  inconsistent  character — bold, 
rather  than  courageous — dashing,  but  inconsequent — chivalric  in 
bearing,  yet  not  always  generous  in  heart — she  could  not  but 
recognize  the  defects  as  well  as  the  graces  of  her  kinsmen  of  the 
Boleyn  blood.  Then,  besides,  his  father  had  served  her  at  the  time 
when  her  faithful  servants  were  few,  and  it  was  one  of  her  prin- 
ciples ever  to  be  true  not  only  to  those  who  had  been  true  to  her, 
but  to  their  children.  But  even  Elizabeth's  constancy  might  be 
overstrained.  To  almost  more  than  womanly  weakness  in  domestic 
life,  she  added  more  than  masculine  severity  in  matters  of  state. 
She  became  piqued  with  Essex's  waywardness  to  her  personally,  and 
permitted  herself,  upon  his  failure  in  his  Irish  campaigns,  not  only 
to  rebuke  but  to  degrade  him.  The  favorite  was  stung  to  the  quick, 
and  rushed  into  a  desperate  scheme  to  forcibly  change  the  adminis- 
tration. He  was  tried  and  sentenced  to  be  executed.  Then  came 
with  her  the  struggle.  ^Yhatever  may  have  been  her  relations  to 
him,  she  loved  him  still  too  affectionately,  and  had,  by  her  indul- 
734 


PSYCHICAL    INDICATIONS    AFTER    CRIME.  [§  811. 

gence,  given  too  large  a  margin  to  his  excesses,  to  permit  her  to 
consent  to  his  death.  That  he  should  die  she  never  intended.  But 
"with  that  singular  and  cruel  waywardness  by  which  her  Tudor 
blood  and  her  woman's  caprice  were  alike  shown,  her  plan  seemed 
to  have  been  to  have  humbled  her  favorite  until  she  brought  him  to 
her  feet  as  a  devoted  suppliant,  once  more  to  be  fastened  to  her 
person,  as  one  who  first  could  give  life  and  then  renew  prosperity. 
To  this  plan  one  thing  was  needed  on  Essex's  part.  Elizabeth  had 
given  him  a  ring  which  he  was  to  send  to  her  whenever  he  was  in 
straits,  and  which,  she  had  given  him  her  word,  should  bring  back 
from  her  a  free  pardon.  The  death-warrant  had  issued,  and  she 
passionately  waited  for  the  ring.  She  recalled  the  warrant  to  give 
more  time,  but  no  sign  Avas  made  by  Essex.  The  sentence  of  his 
peers  hung  over  him — he  asked  not  to  have  it  remitted — and  at  last 
the  queen  let  the  axe  fall. 

Two  years  passed  of  eminent  prosperity.  The  Spaniards  were 
finally  repulsed,  the  Irish  subdued,  a  firm  alliance  was  secured  with 
France,  and  England  was  placed  at  the  head  of  the  Protestant 
poAvers.  Elizabeth  had  apparently  deadened  all  recollection  of 
Essex.  But  on  the  death-bed  of  the  Countess  of  Nottingham,  a 
scene  took  place  which  brought  back  the  old  love  with  all  the  addi- 
tional poAvers  of  remorse.  It  appeared  that  Essex  had  reserved  the 
ring  for  his  last  extremity,  and  then  had  given  it — to  folloAV  Hume's 
incomparable  narrative — "  to  the  Countess  of  Nottingham,  Avhom  he 
desired  to  hand  it  to  the  queen.  The  countess  was  prevailed  on  by 
her  husband,  the  mortal  enemy  of  Essex,  not  to  execute  the  commis- 
sion ;  and  Elizabeth,  who  still  expected  that  her  favorite  Avould 
make  this  last  appeal  to  her  tenderness,  and  who  ascribed  the 
neglect  of  it  to  his  invincible  obstinacy,  was,  after  much  delay  and 
many  internal  combats,  pushed  by  resentment  and  policy  to  sign  the 
warrant  for  his  execution.  The  Countess  of  Nottingham,  falling 
into  sickness,  and  aftected  with  the  near  approach  of  death,  Avas 
seized  Avith  remorse  for  her  conduct ;  and,  having  obtained  a  visit 
from  the  queen,  she  craved  her  pardon,  and  revealed  to  her  the 
fatal  secret.  The  queen,  astonished  Avith  this  incident,  burst  into  a 
furious  passion.  She  shook  the  dying  countess  in  her  bed ;  and, 
crying  to  her  that  God  miglit  pardon  her,  hut  she  never  could,  she 
broke  from  her,  and  thenceforth  resigned  herself  over  to  the  deepest 
and  most  incurable  melancholy.    She  rejected  all  consolation.     She 

735 


§  811.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

even  refused  food  and  sustenance  ;  and,  throwing  herself  on  the 
floor,  she  remained  sullen  and  immovable,  feeding  her  thoughts  on 
her  afflictions,  and  declaring  life  and  existence  an  insufferable  burden 
to  her.  Few  words  she  uttered,  and  they  were  all  expressive  of 
some  inw^ard  grief  which  she  cared  not  to  reveal.  But  sighs  and 
groans  were  the  chief  vent  which  she  gave  to  her  despondency,  and 
which,  though  they  discovered  her  sorrows,  were  never  able  to  ease 
or  assuage  them.  Ten  days  and  nights  she  lay  upon  the  carpet, 
leaning  on  cushions  which  her  maids  brought  her ;  and  her  physi- 
cians could  not  persuade  her  to  allow  herself  to  be  put  to  bed,  much 
less  to  make  trial  of  any  remedies  which  they  prescribed  to  her." 
And  then  came  death. 

§   811.    Wounds   or  mutilations  self-inflicted  for  the  purpose  of 

turning  on  others  an  alleged  crime,  are  peculiarly  open 

fr^mln^^       to  the  same  criticism.     They  are  inflicted  usually  with  a 

stiDctive  falterine  hand:  and,  even  when  this  is  not  the  case,  they 
faltering  or  ,^  '  .'    .  .  ■,-,.■. 

seif-in-  can  Only  operate  within  a  certain  range,  and  under  limi- 

wounds.  tations  which  point  to  the  cause  by  which  they  are  pro- 
duced.^ We  have  an  illustration  to  this  effect  in  the  nar- 
rative given  by  Mr.  Curtis  in  his  Life  of  Mr.  Webster :  "  Goodridge 
was  a  person  of  previous  good  character  and  respectable  standing, 
who  professed  to  have  been  robbed  of  a  large  sum  of  money  at 
about  nine  o'clock  in  the  night  of  December  19,  1816,  on  the  road 
between  Exeter  and  Newburyport,  soon  after  passing  the  Essex 
Merrimac  Bridge  on  his  Avay  from  New  Hampshire  into  Massa- 
chusetts. Among  the  proofs  of  the  robbery  was  a  pistol-shot 
through  his  left  hand,  received,  as  he  said,  before  the  robbers 
pulled  him  from  his  horse,  he  and  one  of  his  assailants  discharging 
their  pistols  at  each  other  on  the  same  instant.  He  was  then, 
according  to  his  account,  dragged  from  his  horse  and  across  a  fence 
into  a  field,  robbed  and  beaten  until  he  was  senseless.  On  his  re- 
covery he  went  back  to  the  toll-house  on  the  bridge,  where  he 
appeared  to  be  for  a  time  in  a  state  of  delirium.  But  he  had  suffi- 
cient self-possession  to  return  to  the  place  of  the  robbery  with 
some  persons  who  accompanied  him  with  a  lantern,  where  his 
watch,  papers,  and  other  articles  Avere  found  scattered  on  the 
ground.     On  the  following  day  he  went  to  Newburyport,  and  re- 

•  Wh.  Crim.  Ev.  9tli  ed.  §  781. 

736 


PSYCHICAL    INDICATIONS   AFTER   CRIME.  [§  811. 

mained  there  ill,  at  intervals  in  a  state  of  real  or  simulated  frenzy, 
for  several  weeks.  Having  regained  his  health,  he  set  about  the 
discovery  of  the  robbers ;  and  so  general  was  the  sympathy  for 
him  in  a  very  orderly  community  that  his  plans  were  aided  by  the 
innocent  zeal  of  nearly  the  whole  countryside.  His  first  charge 
was  against  the  Kennistons,  two  poor  men  who  dwelt  in  the  town 
of  New  Market,  N.  H.,  on  the  other  side  of  the  river.  In  their 
cellar  he  found  a  piece  of  gold,  which  he  identified  by  a  mark 
which  he  said  he  placed  on  all  his  money,  and  a  $10  note  which  he 
also  identified  as  his  own.  The  Kennistons  were  arrested,  examined, 
and  held  for  trial.  He  next  charged  the  toll-gatherer,  one  Pearson, 
as  an  accomplice ;  and  on  his  premises,  with  the  aid  of  a  witch- 
hazel  conjuror,  he  also  found  some  of  his  gold  and  papers  in  which 
it  had  been  wrapped.  Pearson  was  arrested,  examined  before  two 
magistrates,  and  discharged.  Goodridge  then  complained  against 
one  Taber,  a  person  who  lived  in  Boston.  Finally  he  followed  a 
man  named  Jackson  to  the  city  of  New  York,  in  whose  house  he 
swore  that  he  also  discovered  some  of  his  marked  wrappers.  The 
machinery  of  an  executive  requisition  was  put  into  motion,  and 
Jackman  was  brought  into  Massachusetts,  and  lodged  in  jail.  He 
and  Taber  and  the  Kennistons  were  then  indicted  for  robbery  in 
the  county  of  Essex.  So  cunningly  had  this  man  contrived  his 
story  that  the  popular  belief  was  entirely  with  him.  The  witch- 
hazel  of  his  evidence  probably  did  not  disincline  the  populace  to 
believe  him.  But  it  is  even  said  that  there  were  few  members  of 
the  county  bar  who  did  not  regard  the  case  of  the  Kennistons  as 
desperate.  There  were  some,  however,  who  believed  Goodridge's 
story  to  be  false,  and  these  persons  sent  for  Mr.  Webster  to  under- 
take the  defence  of  the  accused.  The  indictment  against  Taber 
was  nol.  pressed.  That  against  the  Kennistons  came  on  for  trial 
at  Ipswich  in  April,»1817.  They  had  nothing  on  which  to  rely  but 
their  previous  good  character  and  the  negative  fact  that  since  the 
supposed  robbery  they  had  not  passed  any  money,  nor  were  seen 
to  have  any,  and  the  improbabilities  which  their  advocate  could 
develop  in  the  story  of  Goodridge.  The  theory  of  the  defence 
was  that  Goodridge  was  his  own  robber,  and  had  fired  the  pistol 
shot  though  his  hand. — In  the  power  of  cross-examining  wit- 
nesses Mr.  Webster  had  no  superior  of  the  day,  and  his  reputation 
in  this  respect  doubtless  aided  the  impression  which  he  produced 
VOL.  I.— 47  737 


§  811.]        MENTAL   UNSOUNDNESS   CONSIDEBED    PSYCHOLOGICALLY. 

upon  the  juvy. — There  were  traditions  which  had  come  over  the 
border  from  New  Hampshire  of  his  terrible   skill  in  baffling  the 
deepest  plans  of  perjury  and  fraud,  which  excited  the  jury  to  the 
closest  attention  to  his  method  of  dealing  with  Goodridge.      They 
?aw  his  well-concocted  story  laid  bare  in  all  its  improbable  features, 
while  every  aid  was  given  to  him  by  Mr.  Webster  to  develop  sug- 
gestions which  could  be  set  off  against  the  theory  that  the  latter 
meant  to  maintain.      But  when  all  the  evidence  for  and  against 
Goodridge's  narrative  had  been   drawn  out,  and  it  came  to  the 
summing  up,  there  remained  two  obvious  difficulties  in  the  way  of 
that  hypothesis.     One  of  them  was  that  no  motive  had  been  shown 
for  so  strange  an  act  as  a  man's  falsely  pretending  to  have  been 
robbed,  and  charging  the  robbery  upon  innocent  people  ;    the  other 
that  the  theory  of  Goodridge   being  himself  a  robber  apparently 
made  it  necessary  to  believe  that  he  had  proceeded  in  this  fraudu- 
lent manufacture  of  proofs  to  the  extremity  of  shooting  a  pistol 
bullet  through  his  own  hand.  These  were  very  formidable  difficulties, 
for  the  law  of  evidence,  as  administered  in  our  criminal  jurispru- 
dence, very  properly  regards  the  absence  of  motive  for  an  act,  the 
commission  of  which  depends  on  circumstantial  proof,  as  one  of  the 
important  things  to  be  weighed  in  favor  of  innocence  ;    and  as  to 
the  shooting,  it  was  certainly  in  a  high  degree  improbable  that  a 
man  Avould  maim   himself  in  order  to  maintain  a  false  statement 
that  he  had  been  robbed  and  maimed  by  some  one  else.      But  in 
grappling  with  these   difficulties,  Mr.  Webster  told  the  jury  that 
the  range  of  human  motives  is  almost  infinite  ;   that  a  desire  to 
avoid  payment  of  his  debts,  if  he  owed  debts,  or  a  whimsical  ambi- 
tion for  distinction  might  have  been  at  the  bottom  of  Goodridge's 
conduct,  and  that  having  once  announced  himself  to  a  community 
as  a  man  who  had  been  robbed  of  a  large  sum  and  beaten  nearly 
to  death,  he  had  to  go  on  and  charge  somebody  with  the  act.    This 
was  correct  reasoning,  but  still  no  motive  had  been  shown  for  the 
original  pretence  ;   and  if  there  had  not  been  some  decisive  circum- 
stances developed  on  the  evidence,  it  is  not  easy  to  say  how  this 
case  ought  to  have  been  decided.      These  circumstances  make  it 
necessary  to  believe    that,  although  Goodridge    had  himself  dis- 
charged the   pistol  which  wounded  him,  he  intended  that  result. 
His  story  was  that  the  pistol  of  the  robber  went  off  at  the  moment 
when  he  grasped  it  with  his  left  hand.      Yet  according  to  the  testi- 
738 


»  PSYCHICAL   INDICATIONS   AFTER   GRIME.  [§  812. 

mony  of  the  physicians  who  attended  him,  there  were  no  marks 
qfpoivder  on  his  hand;  and  the  appearance  of  the  wound  led  to  the 
conclusion  that  the  muzzle  of  the  pistol  must  have  been  three  or 
four  feet  from,  his  hand,  while  there  were  marks  of  powder  on  the 
sleeve  of  his  coat,  and  the  ball  passed  through  the  coat  as  well  as 
the  hand.  This  state  of  evidence  justified  Mr.  Webster's  remark 
that  '  all  exhibitions  are  subject  to  accidents  ;  whether  serious  or 
farcical,  they  do  not  always  proceed  exactly  as  they  ought  to  do.' 
Goodridge,  he  argued,  intended  to  shoot  the  ball  through  his  coat 
sleeve,  and  it  accidentally  perforated  his  hand  also.  Goodridge, 
however,  returned  to  the  charge.  Jackman  was  put  on  trial  at  the 
next  term  of  the  court,  and  the  jury  disagreed.  At  the  second 
trial  Mr.  Webster  defended  him,  and  he  was  acquitted.  These 
criminal  proceedings  were  followed  by  an  action  for  malicious 
prosecution,  instituted  by  Pearson  against  Goodridge.  Mr.  Web- 
ster was  a  counsel  for  the  plaintiff  in  this  case.  The  evidence  was 
now  still  more  clear  against  Goodridge  ;  a  verdict  for  a  large  sum 
was  recovered  against  him,  and  the  public  at  last  saw  the  fact  judi- 
cially established  that  he  had  robbed  himself.  He  left  New  Eng- 
land a  disgraced  man ;  but  no  clue  to  his  motive  was  ever  dis- 
covered. Twenty  years  afterwards  Mr.  Webster  was  travelling  in 
the  western  part  of  the  State  of  New  York ;  he  stopped  at  a 
tavern,  and  went  in  to  ask  for  a  glass  of  water.  The  man  behind 
the  counter  exhibited  great  agitation  as  the  traveller  approached 
him,  and  when  he  placed  the  glass  of  w^ater  before  Mr.  Webster, 
his  hand  trembled  violently,  but  he  did  not  speak.  Mr.  Webster 
drank  the  water,  turned  without  saying  another  word,  and  reentered 
his  carriage.  The  man  was  Goodridge." — In  the  same  line  maybe 
mentioned  the  alleged  self-mutilation  of  Whitaker,  claimed  to  have 
taken  place  at  West  Point  in  1880.^ 

3.  Mo7-bid propensity  to  recur  to  scene  and  topic  of  guilt. 

§  812.  There  are  certain  abnormal  states  of  the  nervous  organism 
in  which  the  propensity  to  commit  a  desperate  act  is    T^■   , 

,  "^  ^  Disclosures 

almost  irresistible.     There  are  few  who  have  not  felt   thus  pro- 
this  when  standing  on  a  tower  or  on  the  brink  of  a  preci- 

'  See  Wh.  Cr.  Ev.  8tli  ed.  §§  754,  849,  where  this  remarkable  case  is  more  par- 
ticularly examined. 

739 


§  815.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

pice.  A  strange  curdling  runs  and  quivers  through  the  veins,  an 
impulse  to  break  this  mystery  of  life,  and  desperately  to  face  what 
stands  beyond.  There  are  few  great  criminals  who  have  not  borne 
witness  to  the  same  propensity.  They  are  ever  on  the  precipice- 
brink  of  discovery,  and  often  comes  this  convulsive  impulse,  to 
throw  themselves,  blood-stained  and  confessing,  into  the  chasm  be- 
low. And  even  when  this  is  not  consummated,  there  is  a  strange 
fascination  which  makes  them  flit  over  the  scene  and  topics.  The 
impulse  is  to  get  as  near  to  the  edge  as  they  can  without  toppling 
over. 

§  813.  This  impulse,  working  in  a  mind  of  peculiar  delicacy  and 
Eug-ene  Culture,  betrayed  itself  in  Eugene  Aram's  case  in  a  series 
Aram'scase  ^f  refined  and  oblique  allusions  to  acts  of  guilt,  such  as 
that  of  which  he  had  been  the  perpetrator.  His  mind  hovered  and 
quivered  over  the  topic,  assuming  and  expressing  itself  in  varied  fan- 
tastic shapes,  often  flitting  apparently  away,  but  floating  again  from 
the  same  spot,  as  would  an  exhalation  from  some  hidden  pernicious 
mine.  So  showed  the  evidence  on  the  trial,  which  is  paraphrased, 
with  extraordinary  psychological  accuracy,  in  Hood's  famous  poem. 

§  814.  Among  coarser  minds  the  same  propensity  exhibits  itself 
Robinson's  '^^  the  affectation  of  jocularity  and  rude  jest.  Thus 
case.  Robinson,  who  was   tried  for  the  murder  of  Suydam, 

whose  body  was  found  under  the  front  basement  floor  of  Robinson's 
house,  remarked,  two  days  before  the  discovery,  to  a  carpenter  who 
found  him,  with  a  hoe,  dragging  the  earth  in  the  back  basement,  as 
if  he  had  been  getting  out  sand  for  the  masons,  "  Here's  where  I 
was  going  to  poke  Suydam  under  ;"  adding  that  "  he  had  not  time 
to  do  it."  This  was  tossed  off"  as  a  joke,  and  may  perhaps  be  re- 
garded as  an  artifice  to  divert  attention.  But  it  arose  more  probably 
from  a  morbid  propensity  impelling  the  murderer  to  dwell  in 
language  on  the  topic  which  was  to  him  at  once  so  perilous  and  so 
engrossing. 

§  815.  The  same  peculiarity  was  observable  in  Nancy  Farrer's 
Farrer's  case.  Whether  or  no  that  remarkable  woman  was  tech- 
*^^^-  nically  responsible  it  is  not  proposed  now  to  consider. 

Conceding,  however,  that  she  was  insane  (and  to  this  effect  went  the 
last  verdict  taken  in  her  case),  she  had  a  vein  of  shrewd  cunning 
running  through  her  which  enabled  her  to  shelter  herself  from  sus- 
picion during  two  successive  groups  of  poisonings.  There  were  the 
740 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  816. 

same  precautions  as  taken  bj  other  criminals  to  deaden  surprise  by 
intimations  of  the  ill  health  of  her  intended  victims — the  same  asser- 
tions of  constitutional  tendency  to  these  particular  symptoms.  And 
with  this  there  was  the  same  subsequent  hovering  of  the  mind  over 
the  scene  of  guilt.  Thus,  after  the  death  of  "  Johnny,"  one  of  the 
children  whom  she  was  employed  to  nurse,  and  whom  she  had  poi- 
soned, she  was  found  "  excited  and  anxious  if  any  two  were  talking, 
to  get  close  to  them,  and  to  wish  to  know  what  they  were  saying." 
And  then  came  one  of  those  strange  convulsive  confessions  such  as 
that  in  Robinson's  case — confessions  in  which  the  truth  is  thrown 
out  as  if  it  were  too  hot  for  the  heart  to  hold,  and  yet  at  the  same 
time  put  forth  as  if  it  Avere  a  joke,  so  as  to  relieve  the  mind  of  him 
that  speaks  from  the  solitude  of  this  awful  secret,  and  yet  not  too 
boldly  proclaim  guilt.  Nancy  told  a  witness,  after  the  death  of  one 
of  the  children,  "  how  lucky  she  was  with  sick  folks  ;  they  all  died 
in  her  hands."  The  witness  saying,  "  May  be  you  killed  them  ;" 
she  said,  "  May  be  I  did."  "  She  seemed  to  be  joking — seemed  to 
be  smiling — seemed  to  be  very  careless  about  it."^ 

4.  Permanent  mental  wretchedness.^ 

§  816.  We  may  pass  the  case  of  a  tender  conscience,  which  com- 
mits a  heinous  act  inconsiderately,  or  under  force  of 

,     ,         •  ^      ^  • , ,  1         1  Extinction 

Strong  temptation,  and  then  is  stung  by  bitter  and  endur-   of  con- 
ing remorse.    These  cases  may  be  said  to  be  exceptional.    rarT*^^ 
We  may  be  told,  and  perhaps  truly,  that  the  majority  of 
great  crimes  are  committed  by  men  whose  hearts  are  so  rigid  and 
callous  as  to  give  no  sign  of  a  troubled  conscience.     The  sun,  on 
the  day  after  the  crime,  shines  upon  a  face  just  as  hard  as  that  on 
which  he  shone  the  day  before.     Blood  cannot  stain  a  skin  already 
black  with  guilt.     No  man  is  suddenly  a  great  criminal.     He  be- 
comes so,  it  is  argued,  by  long  and  slow  processes,  during  which  all 
the  impressible  elements  of  the  heart  are  hardened  and  solidified. 

Now  this  may  be  all  true,  and  yet  common  observation  tells  us 
that  there  are  certain  types  of  character  among  which  ci  priori  we 
are  accustomed  to  look  for  the  perpetrator  of  some  great  crime. 
And  this  rigidity  of  heart  is  one  of  these.     This,  in  itself,  may  give 

>  Farrer  v.  State,  2  Ohio  St.  R.  (N.         «  See  supra,  §  406. 
S.)  64. 

741 


§  818.]        MENTAL  UNSOUNDNESS  CONSIDERED   PSYCHOLOGICALLY. 

a  faint  though  definite  psychological  presumption.  But  it  is 
questionable  whether  there  are  any  characters  in  which  this  type 
is  permanent. 

§  817.  "  To  my  mind,"  says  Dr.  Maudsley,  an  eminent  London 
Memory  physician  whose  prejudices  are  far  from  being  in  favor 
permanent.  Qf  gupernaturalism,^  "  there  are  incontrovertible  reasons 
to  conclude  that  the  organic  conditions  of  memory  are  the  same  in 
the  supreme  centres  of  thought  as  they  are  in  the  lower  centres  of 
sensation  and  of  reflex  action.  Accordingly,  in  a  brain  that  is  not 
disorganized  by  injury  or  disease,  the  organic  registrations  are 
never  actually  forgotten,  but  endure  while  life  lasts ;  no  wave  of 
oblivion  can  efface  their  characters.  Consciousness,  it  is  true,  may 
be  impotent  to  recall  them ;  but  a  fever,  a  blow  on  the  head,  a 
poison  in  the  blood,  a  dream,  the  agony  of  drowning,  the  hour  of 
death,  rending  the  veil  between  our  present  consciousness  and  these 
inscriptions,  will  sometimes  call  vividly  back,  in  a  momentary  flash, 
and  call  back,  too,  with  all  the  feelings  of  the  original  experience, 
much  that  seemed  to  have  vanished  from  the  mind  forever.  In  the 
deepest  and  most  secret  recesses  of  mind,  there  is  nothing  hidden 
from  the  individual  self,  or  from  others,  which  may  not.  be  thus 
some  time  accidentally  revealed  ;  so  that  it  might  well  be  that,  as 
De  Quincey  surmised,  the  opening  of  the  book  at  the  day  of  judg- 
ment shall  be  the  unfolding  of  the  everlasting  scroll  of  memory." 

§  818.  "  Something  was  wrong  with  him.  My  suspicion  Avas 
Conscience  aroused  by  his  troubled  sleep."  This  is  the  frequent 
autocratic,  answer  to  the  question  as  to  what  put  the  witness  first  on 
the  watch.  Shakspeare  makes  Lady  Macbeth's  great  secret  vent 
itself  in  this  way,  and  to  attract  very  much  the  same  observation 
from  by-standers.  And  this,  in  fact,  is  but  in  obedience  to  one  of 
those  divine  sanctions  by  which  crime  is  made  in  part  its  own 
avenger.  "  There  are  violent  and  convulsive  movements  of  self- 
reproach,"  says  Dr.  McCosh,  "  which  will  at  times  break  in  upon 
the  self-satisfaction  of  the  most  complacent.  Man's  peace  is  in  this 
respect  like  the  sultry  heat  of  a  summer's  day  ;  it  is  close  and  dis- 
agreeable at  the  time,  and  ever  liable  to  be  broken  in  upon  by  the 
thunders  and  tempests  of  divine  indignation.  Even  in  the  case  of 
those  who  are  anxious  to  keep  their  attention  turned  away  as  much 

•  Body  and  Mind,  London,  1870,  p.  21. 

742 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  819. 

as  possible  from  themselves,  and  as  little  as  possible  upon  the  state 
of  their  hearts,  there  will  occur  intervals  unfilled  up  between  the 
scenes  that  express  them,  and  on  these  occasions  there  will  be 
recollections  called  up  which  occasion  the  keenest  misery.  It  may- 
be after  a  day  of  selfish  business,  or  an  evening  of  sinful  excite- 
ment, that  such  unwelcomed  visitations  are  paid  to  them  to  disturb 
their  rest,  while  others  have  buried  their  cares  in  the  forgetfulness 
of  sleep.  Or  it  may  be  in  the  time  of  disease,  or  in  the  prospect  of 
death,  that  the  ghosts  of  deeds  committed  long  ago  spring  up  as 
from  the  grave.  These  gloomy  fears,  proceeding  from  conscious 
guilt,  always  rise  up  like  a  ghostly  apparition,  never  in  the  sun- 
shine of  prosperity,  but  always  in  the  gloom  of  adversity,  to  render 
the  darkness  more  horrific." 

"  In  other  cases,  the  troubling  of  the  conscience  is  produced,  we 
can  scarcely  tell  how,  by  the  state  of  the  nervous  system,  or  by  an 
accidental  event,  recalling  the  deed  committed  to  oblivion,  or  by  a 
sudden  flashing  of  some  willingly  forgotten  scene  upon  the  mind, 
revealing,  like  the  lightning's  glare  at  night,  dreadful  depths  of 
darkness.  In  regard  to  such  phenomena  we  may  know  what  are 
the  general  laws ;  though  it  may  be  as  difficult  to  explain  the 
specific  causes  as  it  is  to  tell  the  immediate  cause  of  the  raising  this 
gust  of  wind,  or  of  this  cloudy  atmosphere,  of  both  of  which  we  may 
know  perfectly  what  are  the  general  means  of  their  production." 

' '  0  coward  conscience  !  how  dost  thou  afflict  me  ! 
The  lights  burn  blue.     Is  it  not  dead  midnight  ? 
Cold  fearful  drops  stand  on  my  trembling  flesh. 
What !  do  I  fear  myself?     There  's  none  else  by." 

Pdch.  III.  Act.  V.  Scene  3. 

§  819.  M.  Guillon  relates  the  following  remarkable  case  :    "  The 

Chevalier   de    S had   been  engaged   in   seventeen    mustra- 

'  affairs  of  honor,'  in  each  of  which  his  adversary  fell.  *^°"^- 
But  the  images  of  his  murdered  rivals  began  to  haunt  him  night 
and  day :  and  at  length  he  fancied  he  heard  nothing  but  the  wail- 
ings  and  upbraidings  of  seventeen  families — one  demanding  a  father, 
another  a  son,  another  a  brother,  another  a  husband,  etc.  Har- 
assed by  these  imaginary  followers,  he  incarcerated  himself  in  the 
monastery  of  La  Trappe  ;  but  the  French  revolution  threw  open 
this  asylum,  and  turned  the  Chevalier  once  more  into  the  world. 
He  was  now  no  longer  able  to  bear  the  remorse  of  his  own  con- 

743 


§  820.]      MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

science,  or,  as  he  imagined,  the  sight  of  seventeen  murdered  men, 
and  therefore  put  himself  to  death.  It  is  evident  that  insanity  was 
the  consequence  of  the  remorse,  and  the  cause  of  the  suicide." 

Mr.  de  Quincey,  in  one  of  the  volumes  of  his  literary  reminis- 
cences, thus  speaks  of  a  duel  between  Colonel  Montgomery  and 
Captain  Macnamara  : — 

"  The  colonel,  as  is  well  known,  a  very  elegant  and  generous 
young  man,  fell ;  and  Captain  Macnamara  had  thenceforward  a 
worm  at  his  heart,  whose  gnaAvings  never  died.  He  was  a  post- 
captain  ;  and  my  brother  afterwards  sailed  with  him  in  quality  of 
midshipman.  From  him  I  have  often  heard  affecting  instances  of 
the  degree  in  which  the  pangs  of  remorse  had  availed  to  make  one 
of  the  bravest  men  in  the  service  a  mere  panic-haunted,  and,  in  a 
moral  sense,  almost  paralytic  wreck.  He  that,  whilst  his  hand  was 
unstained  with  blood,  would  have  faced  an  army  of  fiends  in  dis- 
charge of  his  duty,  now  fancied  danger  in  every  common  rock- 
ing of  a  boat ;  he  made  himself,  at  times,  the  subject  of  laughter 
at  the  messes  of  the  junior  and  more  thoughtless  officers ;  and  his 
hand,  whenever  he  had  occasion  to  handle  the  spy-glass,  shook  (to 
use  the  common  image),  or  rather  shivered,  like  an  aspen  tree  !" 

§  820.  Extraneous  circumstances  may  evoke  this  involuntary 
Latent  con-  remorse.  The  culprit  may  form  around  him  his  own 
^?°uiit\^n  atmosphere,  which  will  impart  for  a  while  its  tinge  to 
voluntarily   his  conduct.     He  mav,  by  a  powerful  effort  of  imagina- 

awakened        .  „       ,  .  '     7.     .  .  1    n     •  ■ 

byextrane-  tion,  create  lor  himseli  fictitious  wrongs  and  fictitious 
cumstan-  justification.  Suddenly,  however,  comes  a  rude  touch 
^^^-  and  dissolves  the  whole  fabric.     Heretofore  he  believed 

himself  a  hero,  or  an  instrument  of  inexorable  fate.  Now  he  sees 
himself  a  murderer,  cruel  and  loathsome,  and  a  spasmodic  cry  of 
agony  escapes  his  lips,  or  insanity,  or  suicide,  or,  what  may  be 
worse  than  either,  a  dull  and  incurable  despair,  closes  his  life. 

The  independent  existence  of  this  latent  consciousness  of  guilt  is 
shown  by  the  fact  that  it  is  called  into  action  by  events  over  which 
the  will  has  no  control.  It  is  not  the  creation  of  a  diseased  brain. 
It  is  not  the  result  of  a  morbid  self-introspection.  Were  it  either 
of  these,  the  will  could  recall  it,  or  perhaps  again  banish  it.  But 
it  is  produced  arbitrarily  and  convulsively  by  circumstances  with 
which  the  will  has  nothing  to  do.  The  sudden  sight  of  a  ring 
belonging  to  one  whom  Queen  Elizabeth  had  loved  but  sacrificed, 
744 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  822. 

threw,  as  we  have  seen,  that  proud  and  self-poised  Avoman  into 
an  agony  of  demonstrative  remorse.  The  countess  of  Somerset, 
who  had  borne  herself  with  such  consummate  self-possession  and 
tact  during  the  prior  periods  of  the  prosecution,  screamed  with 
terror  at  the  prospect  of  being  taken  to  sleep  in  the  room  of  Sir 
Thomas  Overbury,  whom  she  had  poisoned.  Nor  are  these  cases 
unfamiliar  to  our  every-day  observation.  A  little  locket,  a  lock  of 
hair,  a  faded  rose,  a  ribbon,  taken  from  the  person  of  one  who  has 
been  loved  and  lost,  will  recall  a  passionate  torrent  of  long-buried 
grief.  We  may  have  been,  a  moment  before,  calm  or  buoyant.  If 
we  had  been  able  to  exercise  our  own  will,  we  would  have  banished 
these  memories  finally.  But  now,  without  our  agency,  they  burst 
upon  us  and  overwhelm  us. 

§  821.  How  corrosive  is  remorse,  even  when  crime  is  undetected, 
is  illustrated  by  the  case  of  John  Sadleir,  whose  forge-   s^dieir's 
ries  startled  London  a  few  years  ago.    "  A  highly  re-    case. 
spectable  solicitor,  who  was  himself  engaged  in  London,  received 
one  night  from  a  correspondent  in  Dublin  a  telegraphic  dispatch 

which  merely  said,  '  All  wrong  about  • 's  mortgage  ;  I  will 

write  by  post.'  Sadleir,  who  saw  the  dispatch,  immediately  con- 
ceived that  it  alluded  to  one  of  his  forgeries,  and  that  he  was  on 
the  point  of  being  discovered.  Without  saying  a  word,  he  went 
home,  and  on  his  road  purchased  a  quantity  of  essential  oil  of 
almonds  ;  and  the  same  night  committed  suicide.  How  great  must 
have  been  the  mental  torture  this  wretched  man  had  endured  for 
some  time  previous  to  his  committing  this  rash  act  may  be  judged 
from  the  fact  that  the  coats  of  his  stomach  were  impregnated  with 
opium  ;  and  it  was  afterwards  discovered  that,  from  the  constant 
use  of  the  drug,  the  quantity  he  was  obliged  to  take  in  order  to 
procure  a  few  hours'  sleep  was  enough  to  have  killed  an  ordinary 
person.  For  some  time  before  his  decease  he  seemed  scarcely 
capable  of  fixing  his  mind  for  five  minutes  upon  one  continuous  sub- 
ject— his  eye  was  incessantly  turning  with  a  haggard  expression, 
and  he  was  totally  unconscious  of  the  matter  under  discussion."^ 

§  822.  There  is  a  feature,  however,  in  respect  to  a  consciousness 
of  guilt  thus  produced,  that  distinguishes  it  from  a  suddenly  re- 
called grief.     The  latter  reproduces  merely  a  past  memory,  the 

J  Good  Words,  1866,  p.  467. 

745 


§  823.]      MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

former  a  present  reality.  The  recollection  of  the  latter  is,  I  was 
Distinction    ^^  TIME  PAST  SO  and  SO.     The  discoverj  with  the  former 

between  ^g  .    J  ^^   jjqW  A  CRIMINAL:    I    DID  THAT    DEED  OF  GUILT, 

conscious- 
ness of.  syuilt    Of  this  discovery  there  are  but  two  or  three  consequences. 

deniy  re-  One  is  confession,  and  the  consequent  relief  from  a  com- 
caiied  grief  paratively  unburdenedconscience.  Another  is  a  continued 
condition  of  misery.  A  third  is  the  stupor  or  hardness  which  is  so 
common  an  attribute  of  old  criminals.  Either  of  these  is  a  posi- 
tive psychical  condition,  as  much  the  subject  of  ascertainment  as 
are  the  types  or  phases  of  the  physical  condition. 

§  823.  When  death  is  voluntarily  encountered,  by  an  intelligent 
Diso-uised  ^^^1^5  i"^  Order  to  avoid  the  disgrace  and  penalties  of  dis- 
suicide  is  covered  crime,  it  is  an  impressive  illustration  of  the  great 
nitionljf  ethical  truth  we  have  now  under  consideration.  This  is 
standard  of  peculiarly  the  case  when  the  death  sought  for  this  pur- 
rigiit.  pQgg  jg  ^  death  skilfully   disguised  in  advance  by  the 

criminal  himself,  in  order  to  preserve  his  reputation.  The  con- 
fession here  is  twofold ;  there  is  a  confession  that  a  wrong  has 
been  done  whose  discovery  the  wrong-doer  is  unable  to  endure,  and 
a  confession  that  the  suicide  itself  is  a  wrong  which  must  on  its  own 
account  be  covered  up.  The  stratagems  resorted  to  for  this  pur- 
pose are  of  peculiar  importance  in  our  present  inquiry,  for  they  are 
not  contrived  for  the  purpose  of  shielding  self,  since  they  can  only, 
if  effective,  operate  when  the  person  designing  them  is  out  of  the 
range  of  human  censure  or  human  discipline.  They  are  the  pro- 
duction, therefore,  not  of  fear,  nor  of  interest,  but  of  a  desire,  in 
part,  to  retain  a  reputation  heretofore  untarnished,  in  part  to  save 
the  feelings  of  surviving  friends.  In  proportion  to  the  ingenuity 
and  complication  of  such  contrivances,  they  illustrate  a  conscious- 
ness of  the  disgrace  attending  not  merely  the  discovery  of  wrong, 
but  the  exposure  of  suicidal  attempts  to  evade  such  discovery.  The 
suicides  which  are  undisguised  efforts  at  the  evasion  of  punishment 
are  undoubtedly  impressive  confessions  of  guilt;  but  they  are  far 
less  impressive  than  the  disguised  suicide,  which  involves  the  con- 
fession of  the  wrongfulness  of  the  confession  itself.  The  undis- 
guised suicide,  also,  may  be  the  work  of  sudden  impulse,  or  of  brutal 
indifference  to  life  and  reputation  ;  not  so  the  disguised  suicide, 
brooded  over  with  often  protracted  suspense,  and  in  solitary  agoniz- 
ing deliberation  and  circumspection.  Such  a  suicide  is  not,  indeed, 
746 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  823. 

a  testimony  to  the  power  of  conscience  in  the  breast  of  the  wrong- 
doer himself,  unless  we  suppose  him  dead  to  the  sense  of  justice  in 
the  world  to  come,  and  having  a  conscience  only  for  this  life  ;  but 
it  is  a  testimony,  and  that  the  strongest  that  individual  recognition 
can  give,  to  the  existence  of  a  public  conscience  which  makes  dis- 
covered crime  a  curse  to  the  criminal  himself. — In  this  light  we 
notice,  in  detail,  a  remarkable  case  of  alleged  suicide  which  took 
place  in  the  village  of  Dexter,  Maine,  in  February,  1879  ;  the  facts 
being  condensed  from  an  elaborate  report  in  the  Boston  Daily 
Advertiser  of  February  1,  1879  :  — 

On  the  morning  of  the  22d  of  February,  1878,  Mr.  James  Wilson 
Barron,  cashier  of  the  Dexter  Savings  Bank,  left  home,  saying  to 
his  wife  that  he  had  business  which  would  probably  detain  him  until 
three  o'clock  in  the  afternoon ;  that  he  should  not  be  home  until 
then,  and  that  he  had  his  town  report  to  make  out,  he  being  at  the 
time  town  treasurer.  He  had  promised  to  meet  ]Mrs.  A.,  a  depositor, 
at  the  bank  that  morning  for  the  purpose  of  settling  her  accounts,  for- 
getting at  the  time  the  promise  was  made  that  the  day  was  a  holi- 
day. Mrs.  A.  went  to  the  bank  at  the  time  specified ;  but  not 
finding  Mr.  Barron  there,  called  upon  him  at  his  home.  After 
some  conversation,  he  started  with  her  for  the  bank,  making  the 
remark  above  quoted  to  his  wife  upon  leaving  the  house.  Mrs.  A.'s 
account  amounted  to  $100,  and  upon  arriving  at  the  banking  rooms, 
Mr.  Barron  informed  her  that  there  was  not  money  enough  in  the 
bank  at  that  time  to  pay  her  ;  but,  that  if  she  would  accept  a  check 
for  $200  he  would  pay  the  remainder  in  money.  To  this  proposi- 
tion she  agreed ;  and  Mr.  Barron  immediately  left  the  bank,  went  out 
upon  the  street,  and  borrowed  of  the  town  tax  collector  the  sum  of 
$250.  Of  this  sum  $200  was  given  Mrs.  A.  in  settlement  of  her 
account,  the  remainder  being  charged  on  the  books  of  the  bank  as 
having  been  paid  out  on  town  orders.  The  transaction  of  this 
business  occupied  his  time  until  twelve  o'clock.  During  the  after- 
noon Mr.  H.  C.  Parsons,  an  insurance  agent,  who  hired  desk-room 
in  the  bank,  was  at  his  desk  writing  letters.  He  had  occasion  to 
leave  the  banking  room  twice  during  the  afternoon,  but  at  twenty 
minutes  of  five,  having  finished  his  business,  he  left  the  room 
finally,  leaving  Mr.  Barron,  who  had  been  in  the  bank  all  the  after- 
noon, sitting  upon  a  stool,  apparently  engaged  in  figuring.  At  the 
time  Mr.  Parsons  left,  the  doors  of  the  safe  were  unlocked.     Upon 

747 


§  823.]      MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

leaving,  he  locked  the  door  leading  from  the  bank  into  the  corridor 
and  started  for  home.  As  subsequent  developments  proved,  he  was 
the  last  person  who  saw  Mr.  Barron  before  he  was  found  in  a  dying 
condition  within  the  vault  two  hours  subsequently.  Between  six 
and  seven  o'clock,  her  husband  not  having  made  his  appearance, 
Mrs.  Barron  became  anxious,  and  a  search  was  instituted. 

"  A.  F.  Bradbury,  Esq.,  was  first  visited.  The  efforts  to  secure 
an  entrance  through  the  door  leading  to  the  savings  bank  were  un- 
successful. It  was  then  suggested  by  Mr.  Curtis,  cashier  of  the 
Dexter  National  Bank  (which  is  in  the  same  building  and  on  the 
same  floor  with  the  savings  bank),  that,  as  the  safes  of  both  banks 
were  in  the  same  vault,  with  only  ten  inches  of  space  between  them, 
by  entering  the  last-named  bank  and  opening  the  doors  of  the  vault 
they  might' be  able  to  ascertain  whether  or  not  Mr.  Barron  was  in 
the  adjoining  room.  The  suggestion  was  acted  upon.  On  opening 
the  outer  doors  of  the  vault,  the  visitors  heard  heavy  breathing, 
which  evidently  came  from  the  other  side  of  the  vault. 

"  One  of  the  visitors,  named  Crowell,  forced  his  way  into  the  vault 
of  the  savings  bank,  and  reported  that  Mr.  Barron  was  lying  upon  the 
floor  of  the  vault,  with  his  head  resting  upon  the  edge  of  a  small 
trunk,  with  a  gag  in  his  mouth,  and  his  hands  fastened  behind  him 
with  a  pair  of  Tower's  patent  ratchet  handcuffs.  Crowell  cut  the 
string  with  which  the  gag  was  fastened,  and  with  the  dying  man 
was  forced  through  the  space  between  the  safes  and  into  the  vault 
of  the  national  bank,  from  which  he  was  removed  to  the  banking- 
room  and  medical  assistance  summoned,  which  was  soon  obtained, 
the  patient  remaining  insensible.  His  breathing  was  very  heavy, 
and,  after  several  fainting  fits,  he  died  at  a  little  before  five  o'clock 
the  next  morning.  After  being  removed  from  the  vault,  a  slight 
scratch  was  found  on  the  forehead,  another  under  the  left  eye,  and 
a  slight  purple  mark  under  the  right  ear  and  another  on  the  back 
of  the  neck.  There  was  also  a  swelling  on  one  side  of  the  head, 
over  the  temple.  One  singular  fact  was  that,  with  all  the  marks, 
there  was  no  abrasion  of  the  skin  discovered,  and  not  a  drop  of 
blood  anywhere  to  be  seen.  There  were  no  marks  of  choking  upon 
his  throat,  and  no  evidence  of  any  violence  having  been  used  in 
putting  the  gag  in  his  mouth.  Soon  after  his  removal  from  the 
vault,  the  door  leading  to  the  savings  bank  was  forced  open,  and 
an  examination  made  of  the  outer  door  of  the  vault,  which  fastened 
748 


PSYCHICAL   INDICATIONS    AFTER    CRIME.  [§  823. 

Avith  a  combination  lock.  This  was  opened  by  Mr.  Curtis,  who 
knew  the  combination,  and  the  inner  doors  of  the  safe  Avere  also 
found  securely  locked.  The  questions  next  to  be  decided  were, 
how  did  Mr.  Barron  come  to  his  death  ?  and  how  did  he  get  into 
the  vault  ?" 

In  solving  this  question  the  following  facts  are  to  be  noted :  In 
the  room  leading  from  the  place  in  which  the  banking  business  was 
transacted,  the  key  to  the  handcuffs  was  found ;  and  in  a  pile  of 
rubbish  in  one  corner  of  this  room  his  bunch  of  keys.  Among 
them  was  a  key  to  the  inside  door  of  the  vault,  one  to  the  outside, 
or  door  leading  into  the  street,  a  key  to  the  door  opening  into  the 
banking-rooms,  keys  to  three  doors  in  Masonic  hall,  located  in  the 
top  of  the  building,  besides  several  other  keys  belonging  to  differ- 
ent parts  of  the  building.  A  door  at  the  head  of  the  stairs  leading 
to  Masonic  hall  was  found  open,  as  were  also  three  other  doors 
leading  through  the  hall.  A  window  in  the  rear  room  was  found 
open,  and  the  iron  shutters  were  swung  open.  On  the  floor  of  this 
room,  which  was  used  for  the  storage  of  coal,  a  coal-hod  was  found 
tipped  over' on  its  side.  Four  feet  from  the  coal-hod  Mr.  Barron's 
false  teeth  were  discovered,  and  exactly  four  feet  from  the  teeth  his 
pen  and  holder  were  found  lying  on  the  floor.  The  first  view  of 
these  articles  seems  to  indicate  that  he  was  coming  from  the  coal-bin, 
with  the  coal-hod  in  his  hand,  at  the  time  an  attack  was  made  upon 
him.  "'  In  the  drawers  in  the  counter  were  found  $15  and  a  few 
cents.  On  the  counter  Avas  found  a  dividend  statement  Avhich  was 
made  out  on  the  1st  of  January,  settled  up  and  carried  to  the 
accounts  of  different  depositors.  In  addition  to  this  statement  the 
general  deposit  book  was  also  found  upon  the  counter.  Besides 
the  $15  in  the  money  drawer,  there  were  $100  worth  of  revenue 
stamps  in  one  pigeon-hole  in  the  inside  safe,  $15  in  money  in 
another,  and  $35  in  still  another.  It  was  also  a  noticeable  fact 
that  there  was  no  trace  of  thieves  having  been  in  the  bank ;  not 
even  a  tool  had  been  left  behind  by  the  supposed  murderer  or  mur- 
derers." 

An  examination  of  the  cash-book,  as  it  was  balanced  up  to  that 
day,  showed  the  cash  account  to  be  correct,  and  that  on  the  day 
the  supposed  murder  was  committed  there  ought  to  have  been 
$1600  on  hand.  It  was  supposed  that  amount  had  been  taken  by 
the  robbers,  as  there  was  only  $15  in   the   money-drawer  at  the 

749 


§  823.]      MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

time  Barron  was  found.  Included  in  the  $1600  was  a  $500  bond, 
which  was  entered  on  the  cash-book  as  having  been  received  the 
day  previous,  February  21.  Detectives  were  employed,  and  on 
their  report,  proceedings  were  instituted  against  a  man  named  Hope 
as  concerned  in  the  burglary.  This,  however,  resulted  in  an  ac- 
quittal, there  being  no  evidence  of  guilt. 

So  strong,  however,  was  the  public  feeling  that  Barron  had  died 
a  martyr  to  duty  that  a  subscription  was  made,  mainly  by  the  New 
England  bankers,  and  four  thousand  dollars  collected  as  a  tribute 
to  his  family.  Several  important  developments,  however,  operated 
to  stop  this  movement,  and  dispel  the  theory  of  burglary.  On  the 
first  of  November,  1878,  Mr.  George  Hamilton,  the  new  cashier, 
made  up  his  statement  to  send  to  the  bank  examiner,  W.  W. 
Bolster,  Esq.,  and,  never  before  having  performed  such  a  duty, 
took,  as  a  sample,  the  copy  of  the  one  made  by  Mr.  Barron  on  the 
previous  year.  In  that  copy  the  liabilities  of  the  bank  at  that 
time  appeared  to  be  $218,319.11.  In  looking  over  the  deposit 
book  of  that  date,  he  discovered  that  on  that  day  the  actual  liabili- 
ties of  the  bank  were  $220,319.11,  making  an  apparent  deficit  of 
$2000  between  the  sworn  statement  and  the  actual  liabilities,  as 
shown  by  the  general  deposit  book  and  trial  balance.  On  making 
this  discovery,  they  examined  all  the  entries  on  the  books  from  that 
date  back  to  October  of  the  same  year.  On  the  27th  of  October 
it  appeared  by  the  trial  balance,  as  made  up  by  Mr.  Barron,  that 
the  liabilities  were  $219,663.51,  which  showed  that  the  deficit 
existed  at  that  time.  They  also  examined  the  cash  books  from 
November  1,  1877,  up  to  February  22,  1878,  the  tim.e  of  the  sup- 
posed murder,  and  ascertained  that,  if  the  entries  on  that  book 
were  correct,  there  ought  to  have  been  about  $1600  in  the  bank  at 
that  time.  Among  the  regular  entries  on  the  book,  between  the 
two  last-named  dates,  were  found  items  of  various  amounts,  aggre- 
gating the  sum  of  $1600,  which,  it  will  be  perceived,  just  equals 
the  amount  of  money  which  should  have  been  on  hand  at  that  time. 
A  sino-ular  coincidence  in  connection  with  these  entries  was  that 

o 

they  were  not  entered  on  the  general  deposit  book,  and  no  record 
of  them  appeared  on  the  trial  balance  sheet.  One  of  these  items 
was  under  date  of  February  21,  and  recorded  the  purchase  of  a 
$500  United  States  bond ;  but  the  margin,  where  the  number  of 
the  bond  should  appear,  was  blank.  Neither  did  the  number  of 
750 


PSYCHICAL    INDICATIONS    AFTER   CRIME.  [§  823. 

the  series  appear  in  any  portion  of  the  book.  A  further  examina- 
tion showed  that  loans  on  collateral  had  been  made  to  the  amount 
of  $10,788.50,  while  from  the  general  deposit  book  it  would  appear 
that  the  true  amount  loaned  on  such  security  was  $12,789.50, 
showing,  as  before,  a  deficit  of  $2000. 

Barron's  last  statement  to  the  bank  examiner  was  audited  by 
two  of  the  trustees,  Messrs.  Dastin  and  Abbott,  and,  the  books 
agreeing  with  it,  said  statement  was  approved.  By  a  more  minute 
examination  the  discovery  was  made  that  the  figures  1  and  8  in 
Barron's  original  statement  had  been  erased,  and  the  figures  2  and 
0  substituted.  It  was  further  discovered  that,  in  the  sum  charged 
to  loans  on  collateral  securities,  the  figure  2  had  been  substituted 
for  the  0,  making  the  sum  loaned  appear  $12,789.50,  instead  of 
$10,789.50.  These  erasures  and  alterations  had  evidently  been 
made  after  the  statement  had  been  audited. 

Other  alterations  were  subsequently  discovered,  and  a  Boston 
detective  named  Dearborn  called  in.  "  The  first  suspicious  circum- 
stance appeared  to  be  that  the  trays  in  which  the  cash  was  kept 
still  contained  the  sum  of  $16  when  found  lying  upon  the  counter 
the  morning  after  the  tragedy.  In  the  safe,  inside  the  vault,  were 
a  number  of  pigeon-holes,  in  several  of  which  various  sums  of  money 
and  other  valuables  were  found.  One  contained  $100  worth  of 
revenue  stamps,  another  $35  in  bills,  another  $15,  and  still  another 
$20.  Strange  as  it  may  seem,  not  a  single  dollar  was  missing,  and 
none  of  the  papers  had  been  disturbed.  The  safe  doors  were  open, 
but  the  steel  chest  inside  the  safe,  containing  the  bank's  securities, 
and  upon  which  there  was  a  time-lock,  was  unmolested.  These  and 
other  developments  convinced  the  detective  that  the  work  had  not 
been  performed  by  thieves,  and  in  confirmation  of  this  belief,  he 
failed  to  learn  that,  on  the  day  in  question,  any  strangers  had  been 
seen  in  or  about  Dexter,  or  that  any  strange  teams  had  either 
entered  or  left  the  town.  An  inspection  of  the  gag  found  in  Mr. 
Barron's  mouth  still  further  served  to  dispel  the  theory  of  murder 
and  robbery.  The  gag  was  not  at  all  such  a  one  as  a  professional 
thief  would  think  for  a  moment  of  using,  as  it  did  not  at  all  hinder 
respiration,  or  prevent  the  victim  from  making  an  outcry.  The 
cord  around  Barron's  neck  was  very  clumsily  contrived,  and  hung 
loosely  about  his  shoulders,  while  the  cord  by  which  the  gag — the 
wooden  handle  from  the  bail  of  a  water-pail — was  secured,  proved 

751 


§  823.]      MENTAL    UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

to  be  nothing  but  a  piece  of  common  cotton  twine  in  three  strands. 
Twine  of  this  kind,  it  was  shown,  was  in  common  use  in  the  bank. 
The  cord  found  round  Barron's  neck,  and  with  which  he  was  sup- 
posed to  have  been  choked,  could  have  been  picked  up  in  th.e  bank. 
It  should  be  here  stated  that  after  the  discovery  of  Mr.  Barron  in 
the  vault  a  window  in  the  rear  room,  leading  from  the  bank,  was 
found  open.  It  was  subsequently  shown  that  this  window  had  been 
open  all  day." 

Facts  were  developed  from  which  it  was  inferred  that  it  was  im- 
possible that  the  bank  could  in  that  afternoon  have  been  entered  by 
burglars  ;  and  the  conclusion,  not  only  of  the  detectives,  but  of  the 
bank  officers,  was  that  the  late  treasurer  was  not  only  a  defaulter  and 
a  perjurer,  but  that,  with  the  aid  of  an  accomplice,  he  had  deliber- 
ately planned  and  executed  the  whole  scheme  in  order  to  save  him- 
self from  inevitable  exposure  and  the  disgrace  Avhich  would  follow.  On 
this  theory  they  set  to  work  with  renewed  energy,  Barron's  accounts 
being  $3600  short  seeming  to  provide  a  substantial  basis  upon  which 
to  establish  the  theory  of  suicide.  It  also  appeared  that  Barron's 
watch,  chain,  and  pocket-book  had  not  been  disturbed.  "  There  was 
in  the  back  room  a  coating  of  dust  and  ashes  over  the  whole  floor  quite 
thick.  This  coating  was  disturbed  only  in  a  direct  line  from  the 
door  to  the  coal-bin,  and  had  there  been  a  scuffle  there  (where  the 
teeth,  hod,  and  pen  were  found),  there  must,  it  is  agreed,  have  been 
evidence  of  it.  There  was  no  dirt  of  any  kind  upon  his  clothes, 
and  if  he  had  been  thrown  down,  with  a  dark  suit  on,  there  would 
have  been  plenty  of  it."  Eminent  physicians  who  attended  the 
dying  man  united  in  holding  that  the  death  was  caused  by  poison, 
and  not  by  the  wounds  found  on  the  body.  They  testified  further 
that  Barron  must  have  entered  the  vault  about  five  o'clock,  and  that 
the  effects  noticeable  were  just  such  as  would  have  been  caused  had 
he  taken  eight  or  ten  grains  of  morphia  into  his  system.  Had  he 
taken  such  a  dose,  death  would  naturally  have  ensued  in  about 
twelve  hours.  They  also  said  that  if  he  had  not  taken  any  poison, 
and  had  been  in  the  vault  with  the  gag  in  his  mouth  for  two  and 
one-half  hours,  there  Avould  be  no  good  reason  why  he  should  not 
soon  revive  after  being  taken  into  the  air. 

No  post-mortem  examination  was  had,  the  family  refusing  to 
permit  it. 

It  has  been  ascertained  that  Mr.  Barron  had  a  quantity  of  drugs 
752 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  823. 

in  his  possession  at  the  time  of  this  aifair,  and  that  at  the  top  of  the 
bank  building  a  little  room  was  fitted  up  in  which  he  was  in  the 
habit  of  compounding  medicines  for  one  Dr.  Fitzgerald,  a  clairvoy- 
ant physician,  residing  in  Dexter.  The  detectives  could  not  recon- 
cile themselves  to  the  idea  of  his  having  had  an  accomplice,  who 
would  naturally  have  been  an  interested  party.  The  most  difficult 
question  to  decide,  on  the  hypothesis  of  suicide,  was  how  Barron 
could  have  locked  himself  in  the  vault,  leaving  the  keys  where  they 
were  found  :  on  the  floor  of  the  room  outside.  "  In  making  an  ex- 
amination of  the  inside  of  the  vault.  Detective  Dearborn  discovered 
on  the  top  of  the  safe  a  screw-driver  and  an  old  kerosene  lamp, 
which  were  (so  said  the  present  cashier)  found  in  the  vault  on  top  of 
the  safe,  after  the  discovery  of  Mr.  Barron.  Cashier  Hamilton 
said  further  that  Mr.  Barron  had  been  in  the  habit  of  using  the 
screw-driver  in  removing  locks,  preparatory  to  oiling  them.  The 
finding  of  the  lamp  and  screw- driver  proved  the  key  to  the  mystery. 
Upon  learning  this  it  occurred  to  the  officers  that  Barron  might 
have  locked  himself  in  the  vault,  and,  acting  upon  this  idea,  they 
proceeded  to  experiment,  with  the  assistance  of  Cashier  Hamilton. 
After  one  day's  experimenting  the  officers  demonstrated  that  Bar- 
ron could  have  locked  himself  in.  On  the  outer  door  of  the  vault 
was  a  combination  lock.  This  was  held  to  the  door  on  the  inside 
by  a  cap  fastened  by  one,  screw.  The  cap  being  removed,  it  was 
easy  to  pull  the  door  to,  shove  the  bolts  into  place  with  the  hand 
from  the  inside,  and  then  secure  them  by  a  finger  manipulating  the 
bolt  of  the  lock  into  its  proper  place.  This  done  it  was  easy  to  re- 
place the  cap.  Then  the  door  was  locked,  and  could  not  be  opened 
except  from  the  outside,  and  then  only  by  one  who  knew  the  com- 
bination. Barron  had  that  cap  off  frequently,  in  order  to  change 
the  combination,  and  knew  all  about  the  lock.  It  was  claimed  that 
this  could  be  done  by  working  by  the  light  of  the  kerosene  lamp 
above  referred  to.  The  second  or  inside  door  of  the  vault  was 
double,  opening  to  right  and  left.  It  had  a  Yale  lock  upon  the  in- 
side of  one  half.  When  the  bolt  of  this  was  thrown  out  it  held  in 
place  upright  bolts  (which  from  the  outside  operated  by  a  handle), 
and  prevented  the  one  from  being  dropped  and  the  other  from  being 
raised.  It  was  possible  to  remove  this  lock  without  a  screw-driver, 
and  then  throw  the  bolt  in  the  lock  by  means  of  the  key.  If  Bar- 
ron did  this,  there  is  no  reason  why  he  coall  not  have  put  his  keys 
VOL.  I.— 48  753 


§  823.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

where  they  were  subsequently  found,  and  leave  them  there,  as  he 
could  have  locked  this  door  from  the  inside  without  their  further 
use.  Having  done  this,  he  could  have  closed  the  doors,  put  the 
lock  back  in  place,  and  thus  fastened  the  door  the  same  as  if  it  had 
been  done  with  the  key  from  the  outside.  This  the  officers  did  over 
and  over  again,  and  this,  they  claim,  Barron  did.  It  was  then  a 
very  easy  matter  to  extinguish  the  light,  and  place  the  lamp  and 
screw-driver  where  they  were  found — on  the  top  of  a  small  inner 
safe.  Next  in  order,  probably,  came  the  swallowing  of  the  poison, 
and  the  adjustment  of  rope  and  gag.  To  place  the  manacles  upon 
his  wrists  was  a  comparatively  easy  task.  Everything  being  then 
ready,  all  that  remained  was  to  lie  down  upon  the  floor  and  await 
his  now  inevitable  doom. 

"After  making  this,  to  them,  important  discovery,  the  president, 
cashier,  and  board  of  directors  assembled  at  the  bank,  where -Mr. 
Dearborn  went  through  the  entire  operation,  as  described,  in  just 
four  and  one-half  minutes.    An  attempt  was  made  to  trace  the  hand- 
cuffs, and  it  was  learned  that  some  six  weeks  or  two  months  prior 
to  the  22d  of  February  last,  the  date  of  the  alleged  tragedy,  an 
intimate  friend  of  Mr.  Barron,  a  police  officer,  was  in  the  Dexter 
savings  bank  consulting  Mr.  Barron  on  a  matter  of  private  business. 
Incidentally  the  conversation  turned  upon  the  subject  of  bank  bur- 
glaries, and  the  method  in  which  they  were   performed.     These 
interrogatories  were  propounded  by  Mr.  Barron  to  his  friend,  whom 
he  knew  to  be  an  officer.     The  opinion  requested  was  given  by  the 
officer,  so  far  as  he  possessed  it,  although  it  was  a  subject  concern- 
ing which  he  had  no  great  amount  of  personal  information.    Finally 
Mr.  Barron  spoke  of  handcuffs,  and  was  shown  a  pair  which  the 
officer  had  in  his  possession.    These  he  examined  with  great  minute- 
ness, asking  a  variety  of  questions,  receiving  all  the  explanation 
which  the  officer  could  give.     He  then  tried  the  handcuffs  upon  his 
own  wrists.     He  finally  asked  where  such  could  be  procured,  and 
the  officer  told  him  that  he  knew  of  one  place  where  they  could  be 
purchased,  and  that  was  at  the  corner  of  Brattle  and  Washington 
streets  in  Boston.     The  pair  of  manacles  which  the  officer  showed 
to  Barron  were  a  sample  of  Tower's  ratchet  handcuffs,  and  the  pair 
found  upon  Barron's  hands  when  he  was  discovered  in  his  helpless 
condition  were  identical  with  those  that  the  officer  had  shown  him." 
It  was  also  shown  that,  to  have  effected  such  a  robbery  by  profes- 
754 


PSYCHICAL   INDICATIONS   AFTER   CRIME.  [§  824. 

sional  burglars,  four  men  would  have  been  requisite  ;  while  there 
was  no  proof  of  the  presence  of  any  strangers  in  the  village  that 
afternoon. 

Abundant  evidence  was  given  that  Mr.  Barron  was  virtually 
insolvent  at  his  death,  but  that  his  life  was  largely  insured  for  the 
benefit  of  his  family.  The  bank  officials  ascertained  that  on  the 
1st  day  of  January,  1877,  Mr.  Barron  discharged  a  mortgage  on 
his  house  of  $2000.  They  also  found  that  he  began  covering  up 
his  tracks  as  far  back  as  October,  1876  or  1877,  by  "doctoring" 
his  books. 

In  the  drawer,  in  Barron's  desk,  was  found  a  copy  of  the  trial  of 
Scott  and  Dunlap,  the  Northampton  bank  robbers.  It  will  be  re- 
membered that  when  that  bank  was  robbed  the  cashier  was  taken 
from  his  house,  gagged,  handcuffed,  and  partially  choked  by  a  rope 
around  his  neck  in  order  to  compel  him  to  open  the  doors  of  the  bank. 
The  supposition  is  that  Barron  imitated  as  closely  as  he  could  the 
modus  ojyerandi  of  those  ruffians.  By  his  cash  book  it  appears 
that  there  ought  to  have  been  $520  in  cash  on  hand,  when  in  reality, 
there  was  much  less  money  in  the  bank,  as  has  already  been  stated. 
The  theory  thus  presented  is,  that  the  impending  disclosure  of  the 
falsity  of  his  statement  to  the  bank  examiner  in  November,  1877, 
together  with  the  suspension  of  the  Newport  Savings  Bank  the  week 
previous,  and  the  knowledge  in  his  possession  that  the  Dexter  Bank 
could  not  stand  a  run,  impelled. him  to  the  commission  of  the  fatal 
deed.  If  the  bank  suspended,  the  examiner  would  be  compelled  to 
investigate  its  affairs.  The  cashier  would  then  be  exposed  as  a 
perjurer  and  defaulter.  He  stood  so  high  in  the  community,  having 
occupied  nearly  every  position  of  honor  and  trust  in  the  town,  that 
the  idea  of  being  regarded  as  a  criminal  by  his  associates  was,  to  a 
man  of  his  sensitive  temperament,  unbearable.  To  prevent  such  a 
discovery,  to  secure  the  life  insurance,  and  to  enlist  the  sympathy 
of  the  public,  the  scheme  of  robbery,  it  was  alleged,  was  concocted. 

5.  Animosity  among  confederates. 

§  824.  "He  knows  my  secret,  and  I  must  dispatch  him."    "  Be- 
cause he  fears  my  betraying  him,  he  will  try  to  get  rid    Tendency 
of  me."     One  of  these  feelings,  and  perhaps  both,  lurk   rate'rto'^''^' 
in  the  breast  of  the  confederates  in  almost  every  joint   disagree. 

755 


§  824  a.]       MENTAL  UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

secret  crime.  How  dangerous  is  the  possession  of  a  political  secret 
in  a  despotic  government,  is  evidenced  to  us  in  the  many  assassina- 
tions by  which  fell  the  favorites  of  the  French  and  English  monarchs 
of  the  seventeenth  century. 

But  another  and  more  subtle  impulse  sometimes  intervenes  to 
work  out  the  same  result.  It  seems  almost  an  invariable  psycho- 
logical rule  that  passionate  love,  producing  crime,  is  followed  by 
passionate  hatred.  Take,  for  instance,  the  reign  of  James  I.,  and 
go  to  Lord  Coke's  great  Oyer,  which  has  been  already  more  than 
once  referred  to.  Whether  or  no  the  Earl  of  Somerset  was  really 
guilty  of  the  consummated  poisoning  of  Sir  Thomas  Overbury,  may 
perhaps  be  doubted.  It  is  clear,  however,  that  his  countess  caused 
poison  to  be  sent  to  the  deceased  to  remove  or  punish  his  opposition 
to  her  marriage,  and  that  her  husband  was  at  least  privy  to  her 
designs.  It  is  clear,  also,  that  he  must  have  known,  if  not  partici- 
pated in  the  nefarious  plot  by  which  his  wife,  as  a  preliminary  to 
her  marriage  with  himself,  was  divorced  from  the  Earl  of  Essex. 
For  by  fraud,  if  not  by  bloodshed,  as  all  England  knew,  was  the 
first  marriage  dissolved  and  the  second  secured.  To  make  this 
second  marriage  happy  many  outward  circumstances  conspired. 
The  earl  and  his  countess  were  each  remarkable  for  their  beauty 
and  grace.  They  had  wealth  and  station ;  they  loved  each  other 
with  a  love  which  had  torn  asunder  the  most  sacred  barriers,  and 
had  conquered  almost  unsurmountable  difficulties ;  but  when  they 
at  last  met,  they  found  an  invisible  obstacle  between  them  which 
they  could  not  overcome.  This  was  the  consciousness  of  a  common 
crime.  Their  love  was  followed  by  hatred  so  intense,  and  by  quar- 
rels so  bitter,  that  quiet  was  only  secured  by  separation.  For  years 
they  lived  in  the  same  house  with  hearts  so  hostile  that  they  in- 
stinctively shrank  from  each  other  when  they  met.  Aversion  was 
followed  by  divorce. 

§  824  a.  The  case  of  Udderzook,^  a  case  remarkable  in  many 
other  respects,  furnished  us  with  a  striking  instance  of  the  inability 
of  confederates  in  crime  to  carry  out  their  plans  harmoniously. 
William  E.  Udderzook  and  Winfield  Scott  Goss  entered  into  a  con- 
spiracy to  defraud  certain  insurance  companies,  and,  having  pro- 
cured insurance  on  the  life  of  the  latter  to  a  large  amount,  they 

'  Wh.  on  Horn.  Appendix  to  2d  ed. 

756 


PSYCHICAL   INDICATIONS    AFTER,    CRIME.  [§  824(2. 

set  fire  to  a  frame  shop  in  the  city  of  Baltimore,  in  which  shop  Goss 
was  known  to  have  been  working,  having  first  placed  in  the  shop  the 
body  of  a  man  which  bore  a  general  resemblance  to  Goss.  Upon 
the  discovery  of  this  body,  they  relied  for  a  case  against  the  in- 
surance company,  and  they  were  not  mistaken,  Goss's  wife,  his 
stepfather,  and  his  stepmother,  all  professing  to  recognize  the  body 
as  that  of  Goss,  who,  in  the  mean  time,  disappeared.  The  fire  took 
place  in  February,  18T2.  Mrs.  Goss  sued  the  insurance  companies 
and  obtained  a  verdict ;  in  the  meantime  Goss,  who  had  been  living 
at  Newark,  N.  J.,  under  the  name  of  A.  C.  Wilson,  was  induced  to 
hide  himself  at  Jennerville,  in  Chester  County,  Pennsylvania,  in 
June,  1873.  On  the  11th  of  July,  1873,  Gainer  P.  Moore  discovered 
in  "Blair's  Woods,"  near  Penningtonville,  in  Chester  County,  the 
body  of  a  man  "  mysteriously  hidden"  under  leaves,  a  thin  covering 
of  earth  and  the  dead  limbs  of  trees.  After  being  viewed  by  the 
coroner,  buried,  and  twice  disinterred  for  examination  by  physicians, 
it  was  decided  that  this  was  the  body  of  Goss,  alias  Wilson  ;  and 
at  the  August  sessions  of  the  Chester  County  Oyer  and  Terminer 
of  the  same  year,  Udderzook  was  indicted  by  the  grand  jury  for 
his  murder.  At  the  trial,  the  Commonwealth  proved  the  dissimilar- 
ity between  the  characteristics  of  the  body  found  in  the  burned 
building  in  Baltimore,  in  1872,  and  those  of  Goss,  the  identity  of 
Goss  and  Wilson,  and  the  strong  likeness  of  the  body  found  by 
Moore  to  the  appearance  of  Goss  ;  several  witnesses  swore  to 
certain  strong  points  of  personal  resemblance,  and  several  inanimate 
witnesses — a  ring,  bits  of  clothing,  and  the  like — testified  to  similar 
effect.  It  was  shown  that,  on  the  1st  of  July  previous  to  the  mur- 
der, the  prisoner  left  Jennerville  in  company  with  a  man  who  bore 
a  strong  resemblance  to  Goss  or  Wilson,  and  reached  Pennington- 
ville alone  ;  much  other  circumstantial  evidence  pointed  to  the 
prisoner's  guilt;  and  he  was  convicted  and  executed.  Here,  then, 
was  a  case  in  which  a  conspiracy  to  obtain  a  very  large  sum  of 
money — Goss's  life  had  been  insured  for  $25,000 — was  carefully 
planned,  ably  executed,  and  nearly  carried  out  to  a  successful 
termination.  There  could  be,  apparently,  no  reason  why  the  con- 
federates, if  the  result  of  the  suits  they  had  procured  to  be  brought 
remained  unchanged,  should  not  have  divided  their  plunder  unde- 
tected and  in  peace  ;  but  the  rapacity  of  Udderzook,  or  his  inability 
to  come  to  a  satisfactory  agreement  as  to  a  division  with  Goss,  led 

757 


§  825.]       MENTAL    UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

to  the  murder  of  Goss,  and  the  subsequent  discovery  of  the  whole 
dark  transaction.  So  thoroughly  imbued  "was  Uddei'zook  with  the 
desire  to  get  rid  of  Goss  and  pocket  the  money  himself,  that  he 
went  to  the  length  of  proposing  to  his  brother-in-law,  Rhoades,  to 
induce  Goss  to  make  a  journey  to  West  Chester,  and  steal  from 
him  money  which  he  pretended  Goss  had,  offering  to  guarantee 
Rhoades  SIOOO ;  and  not  only  this,  but  in  defiance  of  the  most 
ordinary  rules  of  caution,  he  wrote  to  Rhoades,  making  an  appoint- 
ment, and  desiring  him,  in  the  most  suspicious  terms,  to  let  no  one 
know  of  their  meeting,  but  to  join  him  without  fail  in  an  enterprise 
in  which  there  was,  he  said,  "  a  cool  $1000,  and  nothing  to  prevent 
us  from  getting  in."  But  Rhoades  having  failed  him,  "on  the 
evening  of  the  same  day,"  said  Judge  Butler  in  his  charge  to  the 
jury,  "  after  the  interview  with  Rhoades,  as  night  was  coming  on, 
the  prisoner  started,  with  the  man  by  his  side,  in  the  direction  of 
Penningtonville.  Baer's  woods  is  about  nine  miles  from  the  place 
of  starting,  and  in  this  direction  the  parties  were  going  when  last 
seen.  John  Hurley,  who  lives  within  a  short  distance  of  the  woods, 
testifies  that  his  wife  in  the  night  aroused  him  to  hear  a  noise  in 
that  direction,  that  he  distinctly  heard  hallooing  and  distinguished 
the  voices  of  two  individuals,  but  could  not  distinguish  any  expres- 
sion except  the  exclamation,  '  oh  1'  "  Udderzook  arrived  in  Pen- 
ningtonville at  twelve  that  night.  The  carriage  in  which  he  returned 
there  was  damaged  and  bloody.  The  homicide  was  detected  by 
the  necessary  incidents  of  its  execution  ;  the  fraud  on  the  insurance 
company  was  detected  by  the  exposure  of  the  homicide. 

§  825.  The  following  striking  remarks  are  from  Mr.  Hargraves's 
"Honor        (1871)  curious  work  on  "The  Blunders  of  Vice  and 

among  Follv."     "  On  the  other  hand,  what  is  the  position  of 

thieves'"' 

only  when     the  confederate  ?     He,  too,  lives  in  constant  apprehen- 

ofTnTe:-es7  sion,  for  he  knows  that  his  employer  has  the  strongest 
remains.  possible  inducement  to  remove  him  in  order  that  he  may 
extinguish  the  evidence  of  his  guilt.  He  knows,  also,  that  a  man 
who  has  instigated  one  misdeed  will  not  hesitate  at  another ;  and 
still  more,  he  perceives  that  his  own  destruction  is  a  condition  which 
is  essential  to  the  secure  enjoyment  of  the  advantages  arising  from 
the  original  offence.  And  thus  they  stand,  eyeing  each  other  with 
alarm,  like  stags  whose  antlers  have  sometimes  been  found  inter- 
locked in  some  furious  struggle,  and  for  whom  there  is  no  release 
758 


PSYCHICAL   INDICATIONS    AFTER    CRIME.  [§  826. 

till  death  arrives  ;  for  each  remembers  (and  this  is  a  most  galling 
element  in  the  transaction),  that,  bj  the  very  terms  of  the  case, 
both  are  to  be  destitute,  of  principle,  and  therefore  neither  can  be 
trusted  for  a  single  instant."  Among  illustrations  of  this  may  be 
mentioned  the  assassination  of  Count  Konigsmark  by  some  Italian 
desperadoes,  whose  employer,  it  is  alleged,  gave  them  a  slow  poison 
before  they  started  on  their  errand,  so  as  to  make  sure  that  they 
should  not  betray  their  secret. 

"  There  is  an  old  saying,"  continues  the  same  author,  "  which 
assumes  that  honor  exists  among  thieves.  Doubtless,  some  measure 
of  fellowship  and  freemasonry  is  to  be  found  among  the  chevaliers 
d' Industrie,  whether  their  operations  are  conducted  on  a  large  or  a 
small  scale.  But  it  is  only  so  long  as  a  common  interest  binds  them 
together,  and  constrains  them  to  unite  for  the  avoidance  of  a  com- 
mon danger,  that  the  slightest  dependence  can  be  placed  on  their 
good  faith.  The  man  who  proves  himself  a  traitor  to  the  com- 
munity will  rarely  scruple  to  betray  his  comrade  whenever  a  fitting 
opportunity  occurs,  provided  he  can  turn  a  few  pounds  by  the 
transaction.  From  Vidocq's  Memoirs  we  learn  that  the  regular 
thieves  of  Paris  showed  no  reluctance  to  assist  the  police  in  detect- 
ing and  exposing  their  professional  brethren ;  for  some  of  them 
were  frequently  employed  by  the  officials  in  unearthing  culprits, 
and  accepted  the  commission  with  pleasure,  either  in  consideration 
of  the  reward,  or  in  the  hope  of  securing  a  little  indulgence  for 
themselves.  He  himself,  whilst  in  prison,  volunteered  to  act  as  a 
spy  upon  his  fellow  convicts,  and  afterwards,  when  set  at  liberty, 
entered  into  a  compact  with  the  police,  at  a  fixed  salary,  to  feed 
justice  with  a  stated  number  of  rogues  each  year,  in  default  of 
which  he  was  liable  to  be  sent  back  to  Brest." 

§  826.  Poets  have  often  dwelt  upon  this  property  of  crime,  but 
by  no  jone  has  this  been  done  with  greater  energy  or  fidelity  to 
truth  than  by  Robert  Browning.  Ottima,  an  Italian  woman,  pur- 
sues with  the  utmost  passion  an  adulterous  intercourse  with  a  Ger- 
man, Sebald.  Together  they  murder  her  husband.  Then  comes 
for  a  moment  the  passionate  voluptuousness  of  guilty  love  in  its  full. 
But  while  they  are  still  in  the  flash  of  delight  at  the  removal  of  the 
obstacle  to  their  undisturbed  enjoyment,  a  country  girl  passes  under 
the  window  singino;  a  home  song  which  brings  them  back  to  the 
reality  of  the  crime  they  have  committed.     It  is  the  ordinary  reac- 

759 


§  828.]      MENTAL   UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

tion  produced  on  a  morbid  state  of  the  brain  by  a  single  healthy 
thought.  Then  fierce  love  is  followed  by  fierce  hatred,  and  death 
by  death. ^ 

§  827.  "  The  mutineers  of  the  Bounty,  after  turning  Bligh  and 
his  eighteen  companions  adrift  in  a  small  boat  in  the  midst  of  the 
Southern  Ocean,  at  the  distance  of  3600  miles  from  the  nearest 
European  colony,  found  it  necessary  to  forego  their  plan  of  settling 
down  in  luxurious  sloth  in  some  insular  paradise,  and  betook  them- 
selves to  a  lonely  rock  rising  perpendicularly  from  the  deep,  and 
accessible  at  one  landing-place  only.  There  they  immured  them- 
selves to  escape  observation,  turning  the  key  of  their  dungeon,  as 
it  were,  by  burning  the  ship  that  brought  them,  lest  it  should 
reveal  their  presence  ;  and  there  they  wore  out  life,  the  party 
quarrelling  among  themselves  and  perishing  by  each  other's  hands, 
for  only  two  were  permitted  to  die  a  natural  death. "^ 

§  828.  Catharine  de  Medicis,  on  the  death  of  Francis  II.,  had 
still  three  surviving  sons,  Charles  IX.,  who  succeeded  to  the  crown  ; 
Henry,  Duke  of  Anjou,  afterwards  Henry  III. ;  and  Francis,  Duke 
of  Alengon.  ■  Over  each  she  had  acquired  an  ascendency  which 
would  give  her  supreme  power  could  she  make  the  crown  autocratic. 
There  was  in  the  way  of  this,  however,  an  insurmountable  difiiculty. 
The  Huguenots  were  a  co-ordinate  power  in  the  state,  and  their 
religion  and  their  political  principles  alike  made  them  intractable. 
Coligny  was  their  leader,  and  besides  this  possessed  military  skill, 
popular  influence,  and  inflexible  integrity.  Assassination  was  to 
Catharine  the  natural  remedy,  and  in  this  she  obtained  the  ready 
support  of  the  chief  of  the  Catholic  party,  the  Duke  of  Guise,  and 
then  the  reluctant  assent  of  Charles  IX.  The  blow  was  struck ; 
Coligny  murdered ;  and  forty  thousand  Huguenots  in  one  night 
destroyed. 

Then  came  the  reaction,  and  prominent  in  this  was  the  disruption 
between  the  queen,  her  sons,  and  her  accomplices.  To  exclude 
Henry  of  Navarre  from  the  succession  was  one  of  the  chief  points 
in  the  confederacy,  yet  eight  days  after  the  massacre,  Charles  IX., 
according  to  Ranke,  was  obliged  to  summon  Henry  to  him  in  the 

1  "  Pippa  Passes,"  by  Robert  Brown-        2  Hargraves's  Blunders  of  Vice  and 
ing.      Mr.   Hawthorne's   novel,   "The     Folly.     London,  1871,  p.  253. 
Marble   Faun,"   deals  with   the  same 
tendency. 

760 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  828. 

night  to  quiet  the  agonies  by  which  he  was  tortured.  The  young 
king  was  filled  with  dread  at  a  wild  tumult  of  confused  voices, 
among  which  were  distant  shrieks  and  howlings,  mingled  with  the 
indistinguishable  raging  of  a  furious  multitude,  and  Avith  groans 
and  curses,  as  on  the  day  of  the  massacre.  So  vivid  was  his  con- 
viction of  the  reality  of  these  sounds,  that  he  sent  messengers  into 
the  city  to  know  if  a  fresh  tumult  had  broken  out.  But  the  sounds 
were  mere  delusions,  which  continued  to  torment  Charles  during 
the  short  remainder  of  his  life.  Thus  he  died  alternately  cursing 
his  mother,  as  the  cause  of  his  misery,  and  turning  to  her  submis- 
sively, in  awe  of  her  overweening  power. 

So  it  was  with  her  two  remaining  sons.  Francis,  Duke  of  Alen- 
gon,  flew  into  open  rebellion,  making  the  massacres  of  which  he 
was  one  of  the  joint  agents  the  plea.  Henry  III.,  it  is  true,  when 
he  succeeded  to  the  crown,  bowing  before  the  queen's  superior 
genius,  conceded  to  her  for  a  while  the  supremacy.  But  this  same 
restlessness  under  the  joint  load  of  a  common  guilt,  this  almost 
anguish  to  throw  it  ofi"  on  her  who  produced  it,  soon  severed  the 
son  from  the  mother.  The  final  act  was  in  the  castle  of  Blois, 
where  the  Duke  of  Guise,  almost  at  the  foot  of  the  throne,  was  ob- 
liged to  defend  himself  by  teeth  and  nails  like  a  wild  beast,  for  he 
had  not  time  to  draw  his  sword.  He  had  been  invited  there  by  the 
king,  as  one  of  the  counsel  of  state,  and  when  there  was  thus  mas- 
sacred by  his  old  co -conspirator.  And  underneath,  on  her  dying 
bed,  lay  Catharine  of  Medicis,  the  wild  tumult  above  giving  her 
proof  of  this  final  dissolution  of  the  strange  partnership  she  had 
formed  for  the  Huguenot  massacre.  The  community  of  guilt  had 
to  them  been  indeed  fatal.  It  had  been  followed  by  the  bitterest 
recriminations  and  imprecations.  It  had  been  followed  by  massa- 
cres and  cross  massacres.  Charles  IX,  did  not  hesitate  to  ascribe 
to  poison  administered  by  his  mother's  hand,  the  disease  which  tore 
his  vitals  ;  and,  though  this  may  be  discredited,  she  permitted  his 
death-bed  to  be  neglected,  and  his  funeral  deserted,  to  increase  the 
welcome  to  her  more  favored  son,  Henry.  The  Duke  of  Guise  was 
massacred  by  Henry  ;  Henry  a  short  time  after  by  an  avenger  of 
the  Duke  of  Guise.  Catharine,  after  having  successively  deserted 
those  for  whom  she  had  risked  so  much,  died  at  last  deserted  by 
each  in  turn. 

761 


§  829.]      MENTAL    UNSOUNDNESS    CONSIDERED    PSYCHOLOGICALLY. 

§  829.  The  National  Bank  of  Northampton,  Massachusetts,  had, 
in  1875,  a  capital  of  four  hundred  thousand  dollars  and  a  surplus 
three-fourths  as  large.  Its  stock  was  selling  in  the  market  at  one 
hundred  and  sixty  dollars  a  share.  The  bank  edifice  was  con- 
structed with  peculiar  care.  "  Inside  of  the  massive  bank  building 
was  a  solid  vault.  To  unlock  the  outer  door  of  the  vault  several 
keys  were  required,  and  these  keys  were  distributed  among  as 
many  bank  officers.  Inside  of  the  vault  .  .  .  were  two  inner 
doors,  each  with  its  combination  of  four  sets  of  figures ;  there  was 
a  new  and  solid  safe  with  double  doors,  each  also  with  its  combina- 
tion of  four  figures  ;  finally,  a  watchman  stationed  within  the  bank 
kept  guard  until  four  o'clock  each  morning."  Large  special  de- 
posits, in  addition  to  the  moneys  of  the  bank,  were  placed  in  these 
vaults.  It  was  discovered  on  the  morning  of  the  26th  of  January, 
1876,  that  the  bank  had  been  robbed,  and  securities  worth  almost 
a  million  and  a  quarter  of  dollars  and  all  the  cash  of  the  bank  had 
been  taken  away.  The  parties,  as  it  ultimately  appeared,  by  whom 
the  robbery  was  planned,  were  Robert  C.  Scott,  James  Dunlap,  and 
William  Conners  who,  in  1872,  had  robbed  the  Falls  City  Bank  in 
Louisville,  Kentucky,  of  $200,000,  and  two  years  later  had  stolen 
from  a  bank  vault  at  Quincy,  Illinois,  several  hundred  thousand 
dollars.  Preparatory  to  attempting  the  Northampton  bank,  they 
obtained  the  aid  of  William  D.  Edson,  a  skilled  workman  of 
Herring  and  Company,  the  safemakers.  Edson,  being  in  North- 
ampton in  1875,  was  sent  for  by  the  officers  of  the  bank  to  make 
some  repairs  in  the  locks.  "  Entrusted  with  the  keys  used  to  open 
the  outer  door  of  the  vault,  he  took  wax  impressions,  from  which, 
on  his  return  to  New  York,  duplicate  keys  were  made.  There  still 
remained  the  four-fold  combinations  of  the  inner  doors  and  the  safe 
to  be  overcome.  Edson  was  aware  that  a  clerk  of  the  bank  knew 
some  of  these  combinations,  and  he  suggested  to  John  Whittlesey, 
the  cashier,  that  there  was  danger  in  thus  trusting  a  subordinate. 
By  his  advice  all  the  combinations  were  finally  given  to  Cashier 
Whittlesey.  With  the  keys  of  the  outer  vault  held  by  the  robbers 
the  whole  question  of  a  successful  robbery  depended  upon  eliciting 
the  combinations  from  the  cashier — a  matter  of  no  small  audacity 
and  peril,  for  he  lived  two-thirds  of  a  mile  from  the  bank  in  a  house 
where  beside  himself  there  dwelt  six  persons." — The  aid  of  several 
confederates  being  obtained,  the  leaders  of  the  attack,  about  one 
762 


PSYCHICAL   INDICATIONS    AFTER   CRIME.  [§  829. 

o'clock  on  the  morning  of  the  26th  of  January,  1876,  "  gathered, 
masked,  in  front  of  Cashier  Whittlesey's  house.      The  front  door 
was  opened  by  turning  the  key  with  nippers,  and  the  masked  men 
entered.     All  of  the  seven  inmates,  consisting  of  Cashier  Whit- 
tlesey, his  wife,  another  married  pair,  two  ladies,  and  a  servant, 
were  awakened,  bound,  and  placed  under  guard.    Scott  and  Dunlap 
then  took  Whittlesey  in  charge.      He  was  ordered  at  the  point  of 
the  pistol  to  surrender  the  combinations  of  the  vault  and  safe.    He 
tried  to  temporize,  and  gave  the  robbers  a  false  set  of  combinations. 
Here  was  an  emergency  that  the  cunning  of  Scott  was  equal  to. 
It  would  have  wasted  precious  time  to  have  gone  after  four  o'clock 
to  the  distant  bank  to  test  the  figures,  and  to  take  Whittlesey  there 
through  the  open  streets  would  be  to  risk  the  success  of  the  whole 
scheme.      So  Scott,  who  had  taken  down  the  numbers  on  paper, 
suddenly  asked  Whittlesey  to  repeat  them.     The  cashier  could  not 
recall  the  fictitious  figures,  and  his  deceit  was  evident.     The  rob- 
bers   then    resorted    to    more    heroic    means.       The   cashier   was 
pounded,  kicked,  and  choked  until  at  last  in  pain  and  terror  he 
gave  the  real  numbers."     The  whole  family,  Whittlesey  included, 
were  kept  gagged  and  imprisoned  until  four  o'clock,  at  which  time 
the  watchman  was  expected  to  leave  the  bank.      '"  Then  while  one 
part  of  the  gang  remained  on  guard  over  Whittlesey  and  the  other 
captives,  another  part  went  to  the  bank.      The  weak  doors  were 
quickly  entered,  the  outer  door  of  the  massive  vault  swung  open  at 
the  touch  of  Edson's  duplicate  keys,  and  one  after  another  the  four 
sets  of  combinations  of  the  vault  and  safe  yielded,  and  all  the 
securities  in  the  large  safe  were  exposed  to  view.    The  bonds,  stock, 
and  money  were  tumbled  hastily  into  bags,  and  taken  to  a  hiding 
place  to  be  described  hereafter  in  a  schoolhouse  about  a  mile  from 
the  bank.     All  the  doors  were  then  closed  and  the  dials  wrenched 
off  so  as  to  delay  the  opening  of  the  vaults  and  safe.     The  robbers 
stole  altogether  about  $1,200,000,  of  which  $888,000  was  in  cou- 
pon and  registered  bonds,  $300,000   in  stocks,  and  $12,000  in 
bank  bills.     Of  the  bonds  some  $35,000  were  in  government  cou- 
pon bonds,  and  easily  negotiable.     There  was  a  second  safe  in  this 
vault  containing  with  other  securities  about  $100,000  in  bonds 
belongins  to  Smith  Collese  for  Women ;   but  the  combination  of 
this  safe  the  gang  had  forgotten  to  get  from  Whittlesey,  and  no 
attempt  to  open  it  was  made.     Having  hidden  their  booty,  part  of 

763 


§  829.]      MEXTAL   UXSOUNDXESS    CONSIDERED    PSYCHOLOGICALLY. 

the  burglars  took  a  -n-agon  in  waiting,  and  rode  to  Springfield, 
twenty  miles  away,  where  they  were  joined  by  their  associates, 
who  had  come  down  by  rail  on  an  early  train.  The  whole  party 
then  escaped  to  New  Tork  by  different  routes."  The  only  trace 
found  of  the  burglars  was  in  a  small  schoolhouse  where,  as  it  ulti- 
mately transpired,  they  had  been  accustomed  to  meet  when  concoct- 
ing their  plans.  "  With  obvious  lack  of  caution  they  had  left  in 
the  upper  part  of  the  schoolhouse  bits  of  food,  a  lantern,  and  other 
marks  of  their  profession.  These  discoveries  led  to  a  most  rigid 
search  of  the  building.  Partitions  were  knocked  apart,  and  every 
part  of  the  structure,  save  one,  that  could  possibly  be  used  as  a 
hiding-place,  was  explored.  In  that  single  spot  left  unsearched 
the  bonds  were  actually  concealed.  At  one  end  of  the  lower 
rooms  was  a  small  platform  on  which  the  younger  scholars  used  to 
stand  to  reach  a  blackboard.  The  robbers  had  taken  up  a  board, 
placed  the  stolen  booty  inside,  and  fastened  back  the  timber  with 
screws.  The  heads  of  the  screws,  however,  they  covered  with 
putty,  which  had  been  painted  the  exact  color  of  the  paint  on  the 
platform.  The  searchers  examined  the  board,  but  the  unbroken 
line  of  paint  threw  them  off  the  scent,  and  they  overlooked  the 
plunder  when  actually  standing  within  a  few  inches  of  it.  After 
the  first  alarm  and  general  search  were  over,  one  of  the  robbers 
returned  to  Northampton  by  night,  entered  the  schoolhouse,  secured 
the  bonds,  and  took  them  to  New  York."  The  exposure  of  the 
crime  is  due,  not  to  this  negligence  on  the  part  of  the  confederates, 
which  illustrates  the  incoherency  of  crime  noticed  in  a  prior  section, 
but  to  the  inherent  animosity  between  confederates  now  immediately 
under  discussion.  "After  the  robbery  Edsou  fell  out  with  his  con- 
federates. They  had  refused  him  his  share  of  the  booty,  accused 
him  of  treachery,  and  feeling  sure  that  he  would  not  disclose  a 
crime  in  which  he  had  been  so  important  an  actor,  they  despised 
his  threats.  .  .  Whatever  the  motive  he  was  induced  to  dis- 
close the  secret.  Scott  and  Dunlap  were  arrested  on  the  cars  at 
Philadelphia  by  Pinkerton's  detectives,  and  Scott  incautiously  ad- 
mitted the  ownership  of  a  hand-bag  found  under  his  seat,  and  con- 
taining burglars'  tools.  The  two  criminals  were  hurried  secretly 
through  New  York  and  to  Northampton  without  giving  opportunity 
for  legal  delays  at  the  metropolis.  In  due  season  their  trial  came 
on.  They  were  indicted  for  entering  the  bank  and  also  Whittle- 
764 


GENERAL    CONCLUSIONS.  [§  830. 

sey's  house,  and  on  both  indictments  were  found  guilty,  and  sen- 
tenced to  twenty  years  in  the  Massachusetts  State  Prison." 
The  testimony  of  Edson  was  sustained  by  strong  corroborative 
proof,^  "  Marks  of  tools  found  in  their  possession  were  traced  at 
Whittlesey's  house  and  at  the  bank.  Both  robbers  were  also  iden- 
tified by  Mrs.  Whittlesey  and  others.  The  handwriting  of  Dunlap 
was  traced  in  the  addresses  of  letters  proposing  a  compromise  with 
the  bank,  although  the  body  of  the  letters  were  in  characters  printed 
with  a  pen." 

Another  instance  of  the  disintegrating  power  of  crime  is  to  be 
found  in  further  proceedings  in  this  remarkable  case.  Four  years 
after  the  conviction  of  Scott  and  Dunlap,  two  professional  burglars, 
Draper  and  Leary,  were  arrested  as  implicated  in  the  same  offence. 
The  stolen  securities  had  not  been  returned ;  and  it  was  now  made 
known  that  Scott  and  Dunlap,  thinking  that  in  this  way  they 
might  obtain  a  pardon,  had  determined,  unless  the  spoil  was  given 
up,  to  appear  as  witnesses  against  not  only  Draper  and  Leary,  but 
the  whole  gang.  The  intimation  took  effect.  All  the  stolen  docu- 
ments (excepting  $150,000  which  had  been  disposed  of,  but  which 
had  not  got  into  the  hands  of  the  principals  in  the  crime)  were 
returned  to  the  bank.  The  second  prosecution,  however,  broke 
down,  nor,  in  fact,  after  the  recovery  of  the  stolen  bonds,  was  it 
pushed  by  the  bank  with  the  zeal  which  the  public  service  re- 
quired. The  failure  of  the  second  trial,  however,  was  technically 
due  to  the  refusal  of  Edson  to  testify  to  the  participation  of  the 
accused.^ 

IV.    GENERAL  CONCLUSIONS. 

§  830.  Such  are  some  of  the  ways  in  which  psychology  may  be 
used  in  the  detection  of  guilt.     It  shows  how  a  crime    conscience 
betrays  itself,  before  its  commission,  in  preparations,  in    p^''?'  °^ 
intimations,  in  over-acting  ;  at  the  time  of  its  commission,    economy. 

•  See  Com.  v.  Scott,  123  Mass.  222,  lars,  by  the  voice.    To  show  that  tliere 

reported  in  "VVh.  on  Cr.  Ev.  8th  eel.  §§  was  no  peculiarity  in  his  voice,  Scott 

l.i,  312,  430,  433,  441,  803.  was  asked  to  repeat  something,  which 

2  The  paragraphs  iu  inverted  com-  he   did.       But    the  court   held,    that, 

mas  in  the  above  narrative  are  taken  though     identification     could     be    by 

from  a  detailed   account   in  the  New  voice,  experiments  in   court  with  the 

York  Evening   Post  of  .June   29,   1881.  voice    were    inadmissible.        Com.    v. 

On  the  trial  the  cashier  stated  that  he  Scott,  123  Mass.  222. 
could  identify  Scott,  one  of  the  burg- 

765 


§  831.]       MENTAL   UNSOUNDNESS    CONSIDERED   PSYCHOLOGICALLY. 

in  incoherence  ;  after  its  commission,  in  convulsive  confessions,  in 
remorse,  in  involuntary  recurrence  to  the  guilty  topic,  and  in  dis- 
ruption between  confederates.  The  inquiry  is  an  important  one 
in  legal  psychology,  for  it  not  only  aids  in  the  enforcement  of  the 
law,  but  it  leads  us  to  those  supreme  sanctions  on  which  all  law 
rests.  When  we  visit  a  city,  and  see  a  series  of  police  officers  en- 
gaged in  ferreting  out  crime  ;  when  we  see,  in  connection  with  this, 
courts  in  which  the  criminal  is  tried,  and  the  penalties  to  which 
crime  is  subjected,  we  draw  from  these  facts  the  inference  of  a 
government  whose  office  it  is  to  prevent  wrong.  In  proportion  to 
the  perfection  in  which  this  police  system  is  carried  out,  do  our 
conceptions  of  the  wisdom,  the  power,  and  the  earnestness  of  the 
supreme  authority  increase.  So  it  is  with  the  agencies  we  have 
been  examining.  Wherever  guilt  goes,  they  go.  They  dog  it  in 
all  its  stages.  Its  most  secret  haunts  are  not  closed  to  them.  Its 
weakness  as  well  as  its  wisdom — its  slips  as  well  as  its  successes — 
they  notice  and  record.  Nor  is  their  function  that  of  detection  alone. 
They  have  a  strange  power  of  compelling  guilt  to  disclose  itself. 
They  show  us  that  whatever  doubts  there  may  be  as  to  the  origin 
of  evil,  there  is  no  doubt  as  to  its  close.  For  they  show  it  to  be 
pursued  by  a  subtle  and  powerful  avenger,  which  leaves  it  not  until 
in  one  sense  or  another  it  is  judicially  punished. 

§  S31.  There  is  one  difference,  however,  between  the  police  of 
the  courts  and  that  of  the  conscience.  The  former,  in  order  to 
scent  out  the  crime,  often  assumes  the  garb  of  the  criminal.  Yidocq 
goes  into  the  thieves'  den  to  discover  the  thieves'  secrets.  He  re- 
calls memories  of  past  crime,  so  as  to  induce  a  similar  communica- 
tiveness in  his  associates  ;  he  gloats  enticingly  over  the  pleasures  of 
guilt ;  he  incites  to  fresh  adventures  by  which  the  criminal  may  be 
entrapped.  But  it  is  not  so  with  the  angels  of  the  conscience. 
They  warn,  they  appeal,  they  implore,  and  this  in  tones  the  tender- 
est  and  holiest.  Their  garb  is  that  of  light,  telling  from  whence 
they  come.  While  they  announce  beforehand  who  they  are,  and 
use  the  most  touching  entreaties  to  prevent  wrong,  they  declare  it 
will  be  theirs  afterwards  to  avenge  that  wrong  if  done  ; — while  they 
leave  no  secret  as  to  their  awful  mission,  they  gently  plead  by  all 
the  powers  that  persuasion  can  give,  that  vengeance  may  not  be 
theirs  to  inflict.  The  memories  they  recall  are  not  of  early  guilt, 
but  of  early  innocence — of  periods  when  no  mad  or  polluted  com- 
766 


GENERAL    CONCLUSIONS.  [§  832. 

rade  stood  by,  inciting  to  ruin,  but  some  tender  friend  or  relative, 
uttering  counsels  of  love.  They  paint  not  the  pleasures  of  guilt, 
but  its  misery,  and  they  point  to  scenes  of  peace  to  which  guilt 
cannot  reach.  It  is  not  theirs  to  avenge  until  their  final  entreaties 
are  exhausted ;  and,  when  at  last  they  hurry  away  to  give  their 
last  report,  he  whose  guilt  is  disclosed  cannot  but  say  :  "  This,  your 
office  of  exposure  as  well  as  of  restraint,  I  knew  beforehand.  You 
told  me  this — you  told  me  that  my  sin,  if  unchecked,  would  find 
me  out." 

§  832.  It  is  here  that  the  presumptions  from  this  agency  rise  a 
step  higher  than  those  from  an  earthly  police.  The  latter  tells  of 
a  government,  comprehensive,  sagacious,  and  just,  so  far  as  its 
general  object  of  punishing  crime  is  concerned,  but  of  a  government 
which  at  the  same  time  deals  in  punishment  alone,  and  that  by  in- 
struments which  are  often  as  polluted  as  the  evils  they  are  to  cor- 
rect. The  former  tells  of  a  government,  austere  it  is  true,  yet  very 
tender  ;  moving  to  holiness  through  holiness  ;  permeating  not  merely 
the  outer  life,  but  the  secrets  of  the  heart ;  everywhere  warning 
and  entreating,  while  everywhere  judging ;  making  punishment 
certain  and  terrible,  and  yet  so  working  it  up  into  the  consequences 
of  the  criminal's  voluntary  act  as  to  render  it  his  own  choice.  So 
it  is  that  while  a  police  of  mere  detection  and  exposure  argues  an 
executive  of  mere  power,  a  police  of  love  argues  an  executive  of 
mercy  ;  a  police  that  is  omnipresent,  an  executive  that  is  omni- 
present ;  a  police  that  for  a  time  entreats,  warns,  and  dissuades,  an 
executive  that  recognizes  a  temporary  probation ;  a  police  that 
ultimately  and  irrevocably  avenges,  an  executive  that  after  a  free 
probation  judges  definitely  and  finally.  It  is  here  we  have  brought 
before  us  the  elements  of  that  Christian  Providence  which  the  courts 
invoke  as  the  foundation  of  public  justice.  In  crime  itself,  there- 
fore, we  find  the  proof  of  that  Chief  Magistrate  who  avenges  crime. 

So  it  is  that  while  the  court-house  derives  its  sanctions  from  this 
Supreme  Power,  it  contributes  to  the  proof  of  the  existence  of  this 
Power  an  independent  share  of  evidence.  No  witness  can  be  sworn 
until  he  declares  his  belief  in  a  future  state  of  rewards  and  punish- 
ments ;  no  trial  can  take  place  without  strengthening  the  evidence 
on  which  this  state  rests.  Human  justice  falls  back  on  divine  for  its 
support ;  divine  justice  appeals  to  human  as  its  witness.  The  penal 
precepts  of  the  common  law  professedly  find  their  basis  in  the  dic- 

767 


§  833.]       MENTAL   UNSOUNDNESS   CONSIDERED    PSYCHOLOGICALLY. 

tates  of  an  enlightened  Christian  conscience  ;  the  divine  sanction  of 
this  conscience  is  nowhere  so  fully  shown  as  in  the  course  of  a  trial 
at  common  law.  The  present  discussion  will  not  be  without  its 
value  if,  by  illustrating  these  truths,  it  shows  how  close  is  the  con- 
nection between  the  divine  law  and  the  human  ;  and  how  the  science 
of  jurisprudence,  while  it  draws  down  its  strength  from  heaven  to 
earth,  may  still,  if  rightly  studied,  lead  its  votaries  from  earth  to 
heaven. 

§  833.  The  conclusion  which  has  just  been  reached  is  not  with- 
p    .  ,  out  its  value  in  determining  the  vexed  question  of  the 

mentis  objcct  of  punishment.  It  is  argued  by  an  influential 
school  of  thinkers  that  the  object  of  punishment  is  the 
prevention  of  crime  ;  that  whenever  we  can  thereby  prevent  crime 
we  are  justified  in  inflicting  punishment ;  and  that  we  are  not  justi- 
fied in  inflicting  punishment  unless  by  so  doing  we  can  prevent 
crime.  By  another  school  of  thinkers  it  is  held  that  the  object 
of  punishment  is  the  reformation  of  the  off'ender  ;  that  we  are  justi- 
fied in  inflicting  punishment  whenever  it  may  reform  the  party 
punished,  though  it  follows  from  this  that  he  is  not  to  be  punished 
when  he  cannot  be  reformed.  The  true  view,  as  has  been  elsewhere 
urged,  is  that  punishment  is  to  be  imposed  as  a  matter  of  retribu- 
tive justice  ;  and  that  when  so  imposed  crime  is  more  likely  to  be 
prevented  and  reformation  induced  than  would  be  the  case  were 
punishment  inflicted  for  the  mere  purpose  of  prevention  or  reform 
irrespective  of  justice.  And  what  has  been  said  in  the  preceding 
sections  tends  to  strengthen  this  view.  The  punishment  which,  as 
we  have  seen,  is  self-inflicted  by  crime  is  not  primarily  either  pre- 
ventive or  reformatory.  In  a  secondary  sense  it  has  undoubtedly 
both  these  eflfects ;  but  this  is  not  because  the  punishment  is  im- 
posed, but  because  it  is  felt  to  be  deserved.  We  are  deterred 
from  Avrong,  for  instance,  when  we  witness  the  remorse  of  great 
wrong-doers,  not  because  we  see  them  suff"ering  this  remorse,  but 
because  we  know  they  are  suff'ering  in  consequence  of  their  wrong- 
doing. Our  own  remorse  at  wrong  done  by  oui'selves  is  reformatory 
just  in  proportion  as  we  feel  the  remorse  is  the  consequence  of  the 
wrong.  The  system,  then,  that  governs  the  world  is  that  sin  is  to 
be  punished  because  it  is  sin :  punitur  quia  peccatum  est.  And 
it  is  worthy  of  notice  that  by  this  view  are  best  preserved  the  sanc- 
tions at  once  of  liberty  and  of  law.  It  is  not  strange  that  absolutist 
768 


GENERAL    CONCLUSIONS.  [§  833. 

economists  should  claim  the  right  to  inflict  punishment  whenever 
prevention  or  reformation  would  he  worked,  because,  if  either 
prevention  or  reformation  he  the  primary  ohject  of  punishment, 
then  the  right  of  the  state  to  punish  is  unlimited.  I  am  entitled, 
however,  to  know  beforehand  what  acts  are  unlawful,  and,  as  a 
member  of  a  civilized  state,  I  am  entitled  to  demand  that  when 
an  act  is  made  punishable  the  punishment  assigned  should  be  in 
proportion  to  the  heinousness  of  the  act.  Unless  this  be  the  case 
I  have  no  liberty  worth  having.  Turgenieff,  in  his  Punin  and 
Babwin,  has  depicted  with  great  vividness  the  stagnation  produced 
by  a  system  of  government  under  which  a  transportation  to  Siberia 
is  decreed  whenever  it  is  thought  by  the  chief  of  the  police  that  the 
person  transported  would  be  improved  by  the  transportation,  or 
other  persons  prevented  from  wrong-doing  by  seeing  him  driven 
into  exile.  Far  more  vivid  would  be  the  contrasts  could  we  suppose 
such  a  system  introduced  among  ourselves.  In  Russia  it  works 
badly  enough,  but  in  Eussia  free  institutions  never  existed,  and  jus- 
tice was  never  impartially  administered.  Our  traditions  are  differ- 
ent. The  establishing  of  such  a  system  would  be  a  demolition  as 
well  as  a  revolution.  Our  country,  great  and  active  as  it  is,  would,  if 
we  submitted  to  the  introduction  among  us  of  such  a  system  of  penal 
discipline,  be  paralyzed.  There  would  be  no  business  enterprise  in 
which  we  could  engage  which  might  not  to-morrow  be  pronounced 
criminal ;  there  is  no  one,  no  matter  how  meritorious,  who  might 
not  look  forward  to  a  moment  in  Avhich,  from  some  transient  unpopu- 
larity, it  might  be,  or  from  some  other  equally  irrelevant  conspicu- 
ousness,  he  might  not  be  seized  upon  and  punished  in  order  to 
prevent  others  from  wrong.  If  prevention  alone  be  the  standard, 
it  is  immaterial  who  is  punished,  or  how  severe  the  punishment  is, 
if  the  desired  terror  is  produced.  Equally  despotic  is  the  plea  of 
reformation  not  based  on  retributive  justice.  If  reformation  is  the 
sole  standard,  then,  as  has  been  incidentally  noticed,  the  utterly 
incorrigible  could  not  be  punished  at  all,  and  the  punishment  of 
others  would  have  to  be  proportioned  to  their  capacity  for  receiving 
and  retaining  impressions,  just  as  the  efforts  of  the  sculptor  are  pro- 
portioned to  the  capacity  of  the  material  on  which  he  works  to 
receive  and  retain  the  finishing  strokes  of  the  chisel.  Prevention 
and  reformation  are  undoubtedly  secondary  objects  of  punishment; 
VOL.  I.— 49  769 


§  833.]      MENTAL   UNSOUNDNESS   CONSIDERED   PSYCHOLOGICALLY. 

in  other  words,  retributive  justice  should  be  so  shaped  as  best  to 
effect  these  important  ends.  But  unless  a  punishment  is  just,  it 
will  neither  prevent  crime  in  others,  nor  reform  the  person  unjustly 
punished.  Unjust  punishment  if  inflicted  in  order  to  prevent  law- 
lessness would  stimulate  lawlessness ;  if  inflicted  in  order  to  reform 
an  alleged  offender,  it  would  drive  him  into  implacable  resistance  to 
the  government  which  perpetrates  so  atrocious  a  wrong.  To  the  pre- 
servation of  law  as  well  as  to  the  preservation  of  liberty  it  is  essen- 
tial that  punishment  should  be  inflicted  only  in  just  retribution  of  a 
convicted  crime  which  the  law  has  previously  made  punishable.^ 

1  See  Wh..  Cr.  L.  8tli  ed.  §§  1  e  seq.,  wliere  the  topic  is  discussed  at  large  ; 
and  see  supra,  §  754,  note  2. 

770 


INDEX  TO  YOL.  I. 


[the  figures  refer  to  sections.] 


AIDOIOMANIA,  617. 

ALCOHOLISM,  639. 

AMENTIA,  698. 

ANGER,  distinguishable  from  insanity,  422 

APPARITIONS  due  to  mistake  of  senses,  654. 

APHASIA,  324. 

AUTOPSIES  of  insane,  321. 

BLINDNESS,  95,  469. 

BOOKS  on  insanity,  authority  of,  279. 

BRAIN,  lesions  of,  not  due  to  insanity,  321. 

injuries  to,  348. 

influenced  by  stomach,  646. 
BURDEN  OF  PROOF  (see  Presumptions),  246. 

conflict  as  to,  in  cases  of  wills,  30. 

in  criminal  issues,  251. 

CAPACITY,  contractual,  1. 

testamentary,  19. 

to  plead,  200  a. 

of  deaf-mutes,  95. 
CHOREA,  647. 

CHRISTIANITY  has  no  tendency  to  produce  Insanity,  662. 
CLASSIFICATIONS  of  insanity,  305-318. 
COMMISSIONS  OF  LUNACY,  99. 
CONFESSIONS,  insane,  200  a,  788,  804. 

CONSANGUINEOUS  MARRIAGES,  as  affecting  idiocy,  269,  684. 
CONSCIENCE,  extinction  of,  rare,  816. 

part  of  divine  economy,  830. 
CONTRACTS,  capacity  to  execute,  1-18. 

lunacy  as  affecting,  1. 

lucid  intervals  as  affecting,  2. 

monomania  as  affecting,  3. 

fraud  as  affecting,  6. 

771 


INDEX   TO   VOL.    I. 

COliiTR  ACTS— (continued'). 

deeds,  how  affected  by  Insanity,  9. 
partnership,  how  affected  by  insanity,  11. 
torts,  how  affected  by  insanity,  15. 
intoxication,  effect  of,  on,  16. 
man-iage,  capacity  for,  1 7. 
undue  influence,  76. 
CONVERSATION  as  a  test  of  insanity,  378. 

CORPUS  DELICTI,  necessity  of  proving  in  case  of  confessions,  804. 
CRBIE,  hereditary,  367,  371. 
psychical  indications  of,  771. 
prior  to  crime. 

preparations,  773. 
intimations,  775. 
over-acting,  780. 
at  crime. 

incoherence,  781. 
self-over-reaching,  787. 
after  crime. 

con"vnilsive  confessions,  788. 
nervous  tremor,  805. 

morbid  propensity  to  return  to  scene  of  guilt,  812. 
permanent  mental  wretchedness,  814. 
animosity  between  confederates,  815. 
responsibility  for  (see  Responsibility),  capacity  for,  116-201. 
CRIMINAL  LUNATICS,  treatment  of,  753. 
CUNNING  consistent  with  insanity,  381-385. 

DEAF-MUTES,  95,  461. 

DEFINITION  OF  INSANITY,  to  come  from  court,  not  experts,  112,  190. 

DEEDS  (see  Contracts). 

DELIRIUM,  difficulty  of  feigning,  447. 

general  delirium,  702. 

partial  delirium,  706. 

mania  or  amentia  occulta,  706. 
mania  transitoria,  710. 
DELIRIUM  TREMENS,  as  affecting  responsibility,  202. 

as  constituting  a  monomania,  639. 
DELUSIONS,  as  affecting  contracts,  3. 

as  affecting  wills,  34. 

as  affecting  crime,  125. 

objective  and  subjective,  distinction  between,  135. 

due  to  sexual  causes,  525. 

psychological  character  of,  723. 
DEMENTIA,  698. 
DEMONIACAL  POSSESSION,  644. 

772 


INDEX    TO   VOL.    I. 

DEPORTMENT,  as  a  test  of  insanity,  §  378. 
DEPRESSION,  502. 

DERANGEMENT  OF  SENSES,  deaf  and  dumb,  461. 
psychologically,  461. 
legally,  464. 

blind,  469. 

epileptics,  470. 
DETECTION  OF  INSANITY,  338. 
DIPSOMANIA,  639. 

DRUNKENNESS  (see  Intoxication  and  Commissions  of  Lunacy). 
DUMBNESS,  95,  461. 

ECCENTRICITY,  does  not  per  se  incapacitate,  29,  86. 
is  not  equivalent  to  delusion,  38. 
cruelty  of  refusing  capacity  on  account  of,  60. 
ECSTAsIeS,  659. 
EPIDEMICS,  hysterical,  647. 

of  confession,  800. 
EPILEPSY,  470. 
EROTOMANIA,  617. 

ESCAPE,  neglect  to,  presumption  from,  406. 
EVIDENCE,  mode  of  proof  of  insanity,  246. 
testimony  of  experts  and  non-experts,  257. 
scientific  books  inadmissible,  270. 
EXAMINATIONS  OF  INSANE,  by  whom  conducted,  338. 
at  what  time  made,  341. 
by  what  tests,  345. 
EXPERTS,  who  they  are,  262. 

difficulty  in  determining  their  qualifications,  268. 
question  to  be  put  to  them,  262. 

as  to  matter  of  common  knowledge,  264. 
court  to  decide  whether  matter  belongs  to  them,  265. 
as  to  scientific  authorities,  286. 
as  to  hypothetical  case,  32,  267. 
as  to  disputed  facts,  267. 
as  to  conclusion  of  law,  112,  190. 
■weight  to  be  attached  to  their  testimony,  33,  195,  270,  275. 
duties  of,  278. 

should  be  assessors,  274. 
testimony  not  to  be  speculative,  275. 
examinations  should  be  thorough,  276.' 
all  materials  for  diagnosis  should  be  secured,  278. 
entitled  to  special  fees,  263. 
non-experts,  257. 

may  give  opinions  as  to  sanity,  31,  102,  257,  261. 
not  competent  as  to  occult  conditions,  258. 

773 


INDEX   TO   VOL.    I. 

'EXPERTS— (continued). 

cannot  be  asked  as  to  hypothetical  case,  259. 

subscribing  witnesses  admissible  as  to  sanity,  260. 
EXPERT  APPELLATE  COURT,  difficulties  caused  by  absence  of,  273. 

FANATICO-MANIA,  614. 

supernatural  or  pseudo-natural  demoniacal  possession. 
d,  priori  improbability  of  such  possession,  644. 
solubilitjr  of  the  instances  of  such  possession  by  natural  tests. 
disease,  646. 

morbid  imitative  sympathy,  647. 
legerdemain  and  fraud,  651. 
mistake  of  senses,  654, 
guesswork,  656. 

natural  phenomena  at  present  inexplicable,  659. 
historical  evidence  of  such  possession,  660. 
religious  insanity. 

Christianity,  taken  in  its  practical  sense,  has  no  tendency  to  produce 

insanity,  662. 
what  is  called  religious  insanity  is  produced — 

by  a  departure  from  practical  Christianity,  669. 

appeal  to  the  selfish  element,  675. 
by  constitutional  idiosyncrasies,  677. 
fanatico-mania  as  a  defence,  678. 
FEAR,  as  a  check  oft  passion,  149. 

sane  and  insane,  distinction  between,  432. 
not  insanity,  432.      ' 

delusion  as  to  danger  as  affecting  responsibility,  130. 
FEIGNED  insanity  (see  Simulated  Insanity). 
FORGETFULNESS,  as  a  test  of  insanity,  410. 
FRAUD  (see  Undue  Influence'). 

GRIEF,  not  insanity,  426. 

GUARDIANS,  may  avoid  contracts  of  ward,  13. 
in  lunacy,  99. 

HALLUCINATIONS  (see  Delusions).^ 

HANDWRITING,  as  a  test  of  insanity,  386. 

HEREDITARY  TENDENCIES,  as  a  test  of  insanity,  143,  254,  362. 

psychologically  considered,  362. 
HISTORY,  as  a  test  of  insanity,  388. 
HOME-SICKNESS,  429. 
HOMICIDAL  MANIA,  578. 
HYPOCHONDRIA,  508. 
HYPOTHETICAL  CASE,  examination  of  experts  as  to,  32,  267. 

non-experts  cannot  give  opinions  as  to,  257. 

774 


INDEX   TO   VOL.    I. 

HYSTERIA  not  insanity,  517. 

selfishness  a  form  of,  676. 
HYSTERICAL  epidemics,  647. 

IDIOCY  as  to  contracts,  1. 

marriage,   17. 

wills,  20. 

crime,  117. 

produced  by  excesses  of  parents,  369. 

viewed  psychologically,  682. 
ILLUSIONS  (see  Delusions). 
IMBECILITY  as  to  contracts,  1,  76. 

marriage,  17, 

wills,  19,  76. 

crime,  117. 

murder,  in  the  case  of,  441. 

psychologically,  691. 
IMPULSE  (see  Irresistible  Impulse). 
INCENDIARY  PROPENSITY,  604. 
INQUISITION  OF  LUNACY,  generally,  99. 

is  only  prima  facie  proof  to  third  parties,  6  a,  255. 
INSANE  CRIMINALS,  treatment  of,  753. 

retribution,  754. 

prevention,  763. 

example,  765. 

reform,  766. 

why  our  present  system  should  be  remodelled,  770. 
INSANITY,  when  occult,  706. 

when  transitory,  162,  710. 
INSENSIBILITY  of  act,  test  of  insanity,  389. 

to  extremes  of  temperature,  in  the  insane,  358. 
INSURANCE,  LIFE,  when  avoided  by  insanity,  228. 
INTERMEDIATE  THEORY,  329. 
INTOXICATION,  as  aifecting  capacity  to  contract,  16. 

as  affecting  testamentary  capacity,  65. 

as  a  defence  to  charge  of  crime,  202. 

insanity  produced  by  delirium  tremens  affects  responsibility  in  the  same 
way  as  insanity  produced  by  any  other  cause,  202. 

insanity  immediately  produced  by  intoxication  does  not  destroy  respon- 
sibility where  the  patient,  when  sane  and  responsible,  made  himself 
voluntarily  intoxicated,  207. 

while  intoxication  is,  per  se,  no  defence  to  the  fact  of  guilt,  yet  when  the 
question  of  intent  or  premeditation  is  concerned,  it  may  be  proved  for 
the  purpose  of  determining  the  precise  degree,  214. 

as  affecting  responsibility,  639  (see  Commissions  of  Lunacy). 
IRRESISTIBLE  IMPULSE,  146,  567. 

775 


INDEX   TO   VOL.   I. 
KLEPTOMANIA,  590 

LETTERS  as  a  test  of  insanity,  386. 
LIBERTARIAJSriSM  not  inconsistent  with  reason,  664. 
LIFE  INSURANCE  as  affected  by  insanity,  228. 

IjUCID  intervals  in  relation  to  contractual  and  testamentary. capacity 
2,  61. 

presumptions  as  to,  247-249. 

psychologically  considered,  744. 
LUNACY,  commission  of,  99. 
LUNATICS,  CRIMINAL,  treatment  of,  753-770. 
LYING  PROPENSITY,  626. 

MAGNETIC  PHENOMENA  at  present  inexplicable,  659. 
MANIA  A  POTU  as  affecting  responsibility,  202. 

as  constituting  a  monomania,  639. 
MANIA  OCCULTA,  706. 
MANIA  TRANSITORIA,  162,  710. 
MARRIAGE,  capacity  to  contract,  17. 

MATERIALISM,  its  theory  of  insanity  and  volition,  150  a,  327. 
MEDICINES  may  produce  incapacity,  75. 

witnesses  under  influence  of,  245. 
MEDICAL  BOOKS,  279. 
MEMORY,  loss  of,  inferring  insanity,  410. 

often  cause  of  supernatural  presentiments,  657. 
independent  of  corporeal  conditions,  658. 
MIND  not  divisible,  305,  533. 
and  matter,  union  of,  334. 
MONOMANIAS  as  affecting  contracts,  3. 
as  affecting  wills,  34. 

psychologically,  567,  670  (see  Moral  Insanity). 
MORAL  INSANITY  does  not  affect  testamentary  capacity,  37. 
as  a  defence  to  charge  of  crime,  123,  163. 
general,  531. 

as  to  psychological  possibility  of  separate  insanity  of  moral  function, 

633. 
as  to  whether  such  sepai-ate  insanity  exists,  541. 
authorities  in  the  alffrmative,  541. 
present  weight  of  authority  is  negative,  552. 
not  recognized  by  the  courts,  163. 
MORAL  MONOMANIAS,  special,  567. 
at  present  repudiated,  567. 
absurdity  of  classification,  572. 
homicidal  mania,  578. 

kleptomania  (morbid  propensity  to  steal),  590. 
pyromania  (morbid  incendiary  propensity),   604. 

776 


INDEX    TO    VOL.    I. 

MORAL  MOXOMANIA S— (continued). 

erotomania  (morbid  sexual  propensity),  617. 

pseudomania  (morbid  lying  propensity),  626. 

oikeiomania  (morbid  state  of  domestic  affections),  630. 

suicidal  mania,  636. 

dipsomania  (morbid  passion  for  drink),  639. 

fanatico-mania,  644. 

politico-mania,  679. 
MORBID  IMITATIVE  SYMPATHY,  647. 
MOTIVE  as  a  test  of  insanity,  399. 

there  may  be  a  legally  motiveless  act,  405. 

NARCOTICS  (see  Medicines). 
NECESSARIES,  liability  of  lunatics  for,  1. 

of  drunkards,  16  c. 
NEGLECT,  to  escape  presumption  from,  406. 
NERVOUS  DISEASES,  as  transmitting  mental  derangement,  368. 

causing  confessions,  795. 
NOSTALGIA,  429. 
NOTORIETY,  desire  for,  causing  untrue  confessions,   792. 

OBLIVION  as  a  test  of  insanity,  410. 

OCCULT  MANIA,  706. 

OIKEIOMANIA,  630. 

OINOMANIA,  639. 

OLD  AGE  as  affecting  capacity,  87,  104,  691. 

OPTICAL  DELUSIONS,  655. 

PARTNERSHIP  CONTRACTS  (see  Contracts). 
PASSIONS  as  distinguishable  from  insanity. 

remorse,  413. 

anger,  422. 

shame,  423. 

grief,  426. 

homesickness,  429. 

fear,  432. 
PHRENOLOGY,  psychological  value  of,  320. 
PHYSICAL  PECULIARITIES  explaining  mental  conditions,  253. 

tests  of  insanity,  347. 

theory  of  insanity,  330. 
PLEAD,  capacity  of  lunatic  to,  200  a. 
POLITICO-MANIA,  679. 

PREMEDITATION  (sec  Delusions  and  Intoxication). 
PRESUMPTIONS  from  character  of  act,  63,  83,  389,  773,  782. 

from  old  age,  87. 

from  relation  of  beneficiaries  to  testator,  82. 

777 


INDEX   TO   VOL.   I. 

VR'ESVM'PT10:^S— {continued). 

from  party  being  deaf,  dumb,  or  blind,  95,  461. 

from  suicide,  241. 

as  to  sanity  generally,  246-256. 

as  to  lucid  intervals,  2,  61,  744. 

from  hereditary  tendency,  362. 

burden  of  proof,  246. 
PROSTRATIOX,  682. 
PROVOCATION,  delusion  as  to,  130. 

passion  consequent  on,  a  mitigating  element,  151. 

incase  of  intoxication,  216. 
PSYCHICAL  theory  of  insanity,  319. 

indications  of  crime,  7  71  (see  Crime). 
PULSE  as  a  test  of  insanity,  352. 
PUNISHMENT  necessary  to  prevent  crime,  148,  833. 

efficiency  of  penal  discipline,  189,  337. 

in  relation  to  insane  criminals,  753-770. 
PYROMANIA,  604. 

QUESTIONS  OF  LAW  must  be  decided  by  judge,  not  by  jury,  113. 

RAGE  distinguishable  from  insanity,  418. 
RELIGIOUS  INSANITY  (see  Fanatico-mania) . 
REMORSE  distinguishable  from  insanity,  413,  788. 

and  giief,  distinction  between,  822. 
RESPONSIBILITY  FOR  CRIME,  where  the  defendant  is  incapable  of  dis- 
tinguishing between  right  and  wrong  as  to  the  particular"  act,  116. 
■where  the  defendant  is  acting  under  an  insane  delusion  as  to  circum- 
stances which,  if  true,  would  relieve   the   act   from  responsibility,   or 
where  his  reasoning  powers  are  so  depraved  as  to  make  the  commission 
of  the  particular  act  the  natural  consequence  of  the  delusion,  125. 
where  the  defendant,  being  insane,  is  forced  by  an  iiTesistible  impulse  to 

do  the  particular  act,  146. 
moral  insanity  (i.  e.,  a  supposed  insanity  of  the  moral  system  claimed  to 

coexist  with  mental  sanity)  is  no  defence,  163. 
while  experts  may  be  called  to  testify  as  to  states  of  mind  and  conditions 
of  health,  it  is  for  the  court  to  declare  whether  such  states  and  condi- 
tions constitute  irresponsibility,  190. 
predisposition  to  insanity  as  lowering  gi'ade  of  guilt,  200. 
capacity  of  insane  defendants  to  plead,  200  a. 
how  far  intoxication  affects  responsibility,  202. 
moral  insanity  viewed  psychologically,  531. 
moral  monomanias,  567. 
homicidal  mania,  578. 
kleptomania,  590. 

778 


INDEX   TO   VOL.   I. 

EESPOXSIBILITY  FOR  CRIME— [contimted). 

pyromania,  604. 

erotomania,  617. 

pseudomania,  626. 

oikeiomania,  630. 

suicidal  mania,  636. 

dipsomania,  639. 

fanatico-mania,  644. 
RIGHT  AXD  WRONG  TEST  in  criminal  cases,  119. 

not  applicable  to  cases  of  life  insurance,  240. 

SCIENTIFIC  TREATISES,  authority  of,  279. 

SECRETIONS  as  a  test  of  insanity,  352. 

SELF-DEFENCE,  murder  under  delusions  as  to  necessity  of,  440. 

SENSORIAL  SYSTEM,  as  affected  by  insanity,  360. 

SEXUAL  MORBID  INSTINCT,  617. 

SHAjNIE,  distinguishable  from  insanity,  423. 

causing  suicide,  425. 
SIMULATED  INSANITY,  reasons  for  suspecting,  445. 
forms  generally  simulated,  446. 
not  proved  by  sanity  at  trial,  452. 
tests,  354,  454. 
physical  conditions,  347. 
injuries  to  brain,  348. 

anomalies  of  sensibility,  of  pulse,  of  secretions,  of  sense,  352. 
hereditary  tendency,  362. 
psychologically,  362. 
legally,  373. 
conversation  and  deportment,  378. 
■writings,  386. 
prior  history,  388. 
nature  of  act,  389. 

its  insensibility,  389. 

its  incongruity  with  antecedents,  390. 

its  motivelessness,  399. 

motives  rarely  simple,  401. 
passion  as  a  motive,  403. 
lawlessness  as  a  motive,  404. 
neglect  to  escape,  406. 
forgetfulness,  410. 
SLEEP,  its  relations  to  insanity,  482. 
SLEEP-DRUNKENNESS,  484. 
SOMATIC  THEORY  of  insanity,  320. 
SOMNAMBULISM,  492. 
SOMNOLENTIA,  484. 

779 


INDEX   TO   VOL.    I. 

SOUL,  incorporeality  of,  333. 
SPIRITUALISM  as  affecting  capacity,  59. 
STEALIiS'G  MANIA,  590. 
SUICIDE  not  conclusive  evidence  of  insanity,  241. 

under  influence  of  melancholia,  529. 

from  shame,  425. 

as  a  recognition  of  public  sense  of  right,  823. 
SUICIDAL  MANIA,  636. 
SUPERNATURALISM,  effect  of  spiritualism  on  capacity,  59 

manifestation  of,  due  to  fraud,  652. 

supernatural  presentiments  often  due  to  memory,  657. 
SUPERNATURAL  POSSESSION  (see  Demonolvgy). 
SYMPATHY  (see  Morbid  Sympathy). 

TEMPERAMENT,  affections  of,  502. 

depression,  502. 

hypochondria,  508. 

hysteria,  517. 

melancholia,  523. 
THEOLOGY^,  attitude  of,  towards  intermediate  theory  of  insanity,  332, 
TORTS,  how  insanity  affects  responsibility  for,  15. 
TRANSITORY  MANIA,  162,  710. 
TREATISES,  SCIENTIFIC,  when  evidence,  279. 

UNDUE  INFLUENCE,  as  affecting  contracts,  2. 
as  affecting  wiUs,  76. 

VOIDABILITY  OP  CONTRACTS,  law  as  to,  7. 
VOLITION,  conflicting  views  as  to,  150,  327. 

WILLS,  capacity  for,  as  affected  by  insanity,  19-98  (see  Burden  of  Pronj). 
WITNESSES,  when  disqualified  by  insanity,  242. 
non-experts,  257. 

may  give  opinions  as  to  sanity,  31,  162,  257,  261. 

not  competent  as  to  occult  conditions,  258. 

cannot  be  asked  as  to  hypothetical  case,  259. 

subscribing  witnesses  admissible  as  to  sanity,  260. 
experts,  262. 
questions  to  be  put  to  them,  262. 

as  to  matter  of  common  knowledge,  264. 

court  to  decide  whether  matter  belongs  to  them,  265. 

as  to  scientific  authorities,  266. 

as  to  hypothetical  case,  32,  267. 

as  to  disputed  acts,  267. 

as  to  conclusion  of  law,  112,  190. 

780 


INDEX   TO    VOL.    I. 

WITNESSES— (con^mwefZ). 

weight  to  be  attached  to  their  testimony,  33,  195,  270,  275. 
duties  of,  274. 

should  be  assessors,  274. 
testimony  not  to  be  speculative,  275. 
examinations  to  be  thorough,  276. 
all  materials  for  diagnosis  should  be  secured,  278. 
entitled  to  special  fees,  263. 
WRITINGS,  as  evidence  of  sanity,  386. 

781 


END  OF  VOL.  I. 


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